Carrigan et al v. K2M Inc.

Filing 71

OPINION by U.S. Magistrate Judge Byron Cudmore: Defendant's Emergency Motion to Compel Plaintiff to Produce Hardware for Non-Destructive Testing and for Other Relief 69 ALLOWED IN PART. See written order. (LB, ilcd)

E-FILED

Tuesday, 25 October, 2011 10:24:56 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RANDAL W. CARRIGAN and
SHERRY CARRIGAN,
Plaintiffs,
v.
K2M, INC.,
Defendant.

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No. 09-CV-3149

OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Defendant K2M, Inc.’s (K2M)
Emergency Motion to Compel Plaintiff to Produce Hardware for NonDestructive Testing and for Other Relief (d/e 69) (Motion). K2M has
certified that it has attempted in good faith to resolve this matter without
court action. Fed. R. Civ. P. 37(a)(1). For the reasons set forth below, the
Motion is ALLOWED in part.
The Plaintiffs Randal and Sherry Carrigan (Carrigans) allege
products liability claims against K2M arising from screws that fractured in a
Mesa Spinal System designed and distributed by K2M that had been
implanted into Randal Carrigan’s spine. Specifically, the threads in the
screws fractured. The Motion asks the Court to compel the Carrigans to

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deliver to defense counsel the screws and all associated hardware from the
Mesa Spinal System at issue (the Hardware), and also the exemplar
screws that the Carrigans’ experts stated in their depositions that they have
viewed and inspected, so that K2M’s expert can conduct a non-destructive
evaluation and inspection. K2M asks the Court order that K2M and its
expert be allowed to retain possession of these objects until the completion
of the expert’s deposition. K2M further asks for an extension of time to
make its Rule 26 expert disclosures until 45 days after receipt of the
objects. Motion, at 8. K2M’s Rule 26 expert disclosure, including the
expert’s report, is due on November 30, 2011. Text Order entered August
8, 2011.
The Carrigans have no objection to producing the Hardware and six
exemplar screws that the Carrigans’ expert John Harcourt acquired from
Harcourt’s son (Harcourt Screws). The Carrigans also have no objection to
allowing K2M to retain the Hardware and the Harcourt Screws until K2M
makes its Rule 26 expert disclosure, but not beyond that date. The
Carrigans object to producing exemplar screws that their counsel acquired
in preparation for the depositions of the Carrigans’ experts (Carrigan
Attorney Screws), and object to extending the date for K2M’s Rule 26
expert disclosure beyond November 30, 2011. The Carrigans state that
their experts did not rely on the Carrigan Attorney Screws to support any of
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their expert opinions. Plaintiffs’ Response and Objection to Defendant’s
Emergency Motion to Compel Plaintiffs to Produce Hardware for NonDestructive testing and for Other Relief Document Number 69 (d/e 70)
(Response), at 2-3.
The Court will not compel the Carrigans to produce the Carrigan
Attorney Screws. The Carrigans’ attorneys acquired these screws and
used them in preparation for litigation. The Carrigan Attorney Screws
should, thus, be protected from discovery unless K2M shows a substantial
need for these screws and K2M cannot obtain substantial equivalents by
other means. Fed. R. Civ. P. 26(b)(3)(A)(ii). Furthermore, K2M is not
entitled to discover the Carrigans’ attorneys’ communications with their
experts with respect to the Carrigan Attorney Screws unless the experts
considered these screws in forming their expert opinions. Fed. R. Civ. P.
26(b)(4)(C)(ii). The Carrigans state that the Carrigan Attorney Screws
were not used to form their experts’ opinions. The Carrigans, thus, can
properly refuse to produce the Carrigan Attorney Screws. The Court notes
that K2M may possibly be entitled to move in limine before the District
Court to exclude opinion testimony based on the Carrigan Attorney Screws.
The Carrigans are therefore ordered to deliver the Hardware and the
Harcourt Screws to K2M’s counsel for non-destructive evaluation and
inspection by K2M’s expert witness. The Court agrees that no extension of
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time past November 30, 2011, should be needed to complete the expert
report and disclosures, as long as the Carrigans deliver the Hardware and
Harcourt Screws promptly. K2M’s expert has inspected the Hardware
twice before and has the testing data. The expert should be able to
complete the report in time to meet the November 30, 2011, deadline. The
Court also agrees with the Carrigans that K2M should return the Hardware
and Harcourt Screws when it makes its Rule 26 expert disclosure.
Possession until November 30, 2011, should give K2M’s expert more than
enough time to inspect and evaluate these objects.
The Carrigans further ask for the immediate return of Hardware and
Harcourt Screws upon any settlement of this case. The Court finds this to
be appropriate.
WHEREFORE, Defendant K2M, Inc.’s (K2M) Emergency Motion to
Compel Plaintiff to Produce Hardware for Non-Destructive Testing and for
Other Relief (d/e 69) is ALLOWED in part. The Plaintiffs are ordered to
ship the Hardware and Harcourt Screws to K2M’s counsel for receipt by
November 1, 2011. Defendant K2M, Inc., or its expert, may retain
possession of the Hardware and Harcourt Screws until the date that K2M is
required to make its Rule 26 expert disclosures, November 30, 2011. K2M
shall place into shipping the Hardware and Harcourt Screws back to the
Carrigans’ counsel no later than November 30, 2011; provided however,
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K2M shall immediately return the Hardware and Harcourt Screws if the
parties file before that date, a stipulation to dismiss this action with
prejudice because the matter has been settled. The parties shall follow the
protocol for transporting the Hardware approved by this Court in its Text
Order entered June 6, 2011. The Motion is otherwise denied.

ENTER: October 25, 2011

s/ Byron G. Cudmore
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE

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