Fields v. Wright Medical Technology, Inc et al
OPINION AND ORDER: The Court hereby GRANTS in part and DENIES in part the 37 Motion to Compel. The Court ORDERS Plaintiff to FILE, on or before 8/2/2017, an itemization of her costs and fees, including attorney's fees, incurred in the Moti on to Compel along with an argument as to why those expenses are reasonable in this situation, with Defendants to FILE responses to the requests for expenses and any argument as to the reasonableness of the fees or why payment of fees is unjust, along with any requests for payments of their own costs and fees, on or before 8/16/2017, and Plaintiff to reply on or before 8/23/2017. Signed by Magistrate Judge John E Martin on 7/19/2017. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
MERRILY JEAN FIELDS,
WRIGHT MEDICAL TECHNOLOGY, INC.,
and WRIGHT MEDICAL GROUP, INC.,
CAUSE NO.: 4:15-CV-110-RL-JEM
OPINION AND ORDER
This matter is before the Court on a Motion to Compel [DE 37], filed by Plaintiff on
February 21, 2017. Plaintiff asks the Court to compel Defendants to more fully respond to a number
of Plaintiff’s requests for documents. Defendants filed a response on March 14, 2017, and Plaintiff
filed a reply on March 21, 2017.
A party may seek an order to compel discovery when an opposing party fails to respond to
discovery requests or provides evasive or incomplete responses. See Fed. R. Civ. P. 37(a). Federal
Rule of Civil Procedure 26(b)(1) permits discovery “regarding any nonprivileged matter that is
relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Furthermore, the Rule provides
that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Relevancy
is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). A party
may seek an order to compel discovery when an opposing party fails to respond to discovery
requests or provides evasive or incomplete responses. See Fed. R. Civ. P. 37(a). A party objecting
to the discovery request bears the burden of showing why the request is improper. See McGrath v.
Everest Nat. Ins. Co., 625 F. Supp. 2d 660, 670 (N.D. Ind. 2008). The Court has broad discretion
when deciding whether to compel discovery. Thermal Design, Inc. v. Am. Soc’y of Heating,
Refrigerating & Air-Conditioning Eng’rs, Inc., 755 F.3d 832, 837 (7th Cir. 2014); Rennie v. Dalton,
3 F.3d 1100, 1110 (7th Cir. 1993)).
Plaintiff’s Amended Complaint seeks recovery for injuries stemming from allegedly
defective hip implant components. The components were marketed as the PROFEMUR hip stem
system and consisted of a PROFEMUR Plasma Z stem and PROFEMUR CoCr modular neck.
Plaintiff alleges that she required revision surgery and that there was corrosion in the system at the
stem-neck interface, so the cobalt chromium neck was replaced with a Titanium Alloy PROFEMUR
long neck. Plaintiff alleges that this device also failed at the stem-neck interface.
Plaintiff requests documents relating to other versions of the titanum and CoCr PROFEMUR
modular necks, copies of communication with the FDA regarding fretting, fracture, or corrosion of
PROFEMUR hip devices, and a request for definition of the term “heavyweight patients” in
Defendant’s advertising. Defendants object that the request for information about other models of
PROFEMUR stems is overbroad because the models differ significantly from each other and from
those implanted in Plaintiff. They also object that the time period of the document request is too
large and insufficiently targeted to the allegations in this case, and that Plaintiff’s interrogatory
regarding “heavyweight patients” is insufficiently clarified and without context that would allow
Defendants to respond.
The opening paragraph of Plaintiff’s Motion includes a list of numbers that she represents
are requests that Defendants have inadequately responded to; however, although the attachments
include both a list of interrogatories and a list of requests for production, many of the same numbers
appear on both lists. The parties’ briefs address categories of objections to discovery without
identifying which specific outstanding request belongs in which category, so the Court likewise
addresses their arguments generally as to categories of documents and will not compel any specific
responses by number.
Other PROFEMUR Products and Methods of Failure
Defendants object to providing information about other models of PROFEMUR products
than those which were implanted in Plaintiff, arguing that they have provided full information about
the products directly at issue in this case. Defendants argue that Plaintiff’s request for more
information is a fishing expedition and that her request is overbroad and burdensome, not
appropriately tailored to the issues in this case. They argue that the models in the product line are
not the same, that the different sizes are intended to cover different patient anatomies and that those
different anatomies also affect the complications and injuries the patients suffer. Plaintiff argues
that information about other PROFEMUR models is relevant because those devices are substantially
similar to the devices implanted in Plaintiff and that the mechanism of failure between the different
versions is the same.
Plaintiff argues that Defendants did not distinguish between the versions of the modular
necks or stems in their advertising, instead emphasizing the interchangeable nature of the
PROFEMUR system without making any performance distinction. In addition, Plaintiff points to
the adverse event database published by the Food and Drug Administration, noting that it does not
distinguish between PROFEMUR neck models, and to the approval Defendants sought from the
FDA, which likewise did not differentiate between the necks.
As Plaintiff argues, discovery into similar products with the same component parts or
structural defects is generally permitted in products liability cases. See, e.g., Piacenti v. Gen. Motors
Corp., 173 F.R.D. 221, 224-25 (N.D. Ill. 1997) (describing cases). Particularly given that
Defendants do not appear to distinguish between the different PROFEMUR models when describing
their safety, and given that this is a question of what information is discoverable, not what evidence
can be admitted at trial, Defendants have not borne their burden of establishing that the information
on other PROFEMUR models is improper. Accordingly, Defendants must respond to Plaintiff’s
requests as to all PROFEMUR neck models. To the extent that Plaintiff is seeking information
about completely different products, Defendants have sufficiently demonstrated that requiring them
to produce documents pertaining to non-modular neck products is unduly burdensome and not
sufficiently targeted to lead to relevant information.
Similarly, Plaintiff also seeks documents relating to failure due to fracture and fretting, in
addition to corrosion, and argues that Defendants’ marketing documents reflect that Defendants
believe fretting or corrosion lead to fracture. Defendants argue that materials pertaining to fretting
and fracture are irrelevant, and the burden of producing them is not proportional to the needs of the
Defendants particularly object to providing documents and communications between
Defendants and the FDA that include discussion about modular neck corroding, fretting, or
fracturing and any reports to or from the FDA for incidents of corroding, fretting, or fracturing.
Defendants argue that they have sufficiently complied with this request by providing documents
regarding the products that were implanted in Plaintiff and producing the complaint file and adverse
event reports for Plaintiff’s alleged injuries. They argue that complaint files and adverse event
reports for other patients are not relevant, too burdensome to produce, and publically available.
Defendants argue that the burden of searching its files for all complaints and reports related to all
PROFEUMR products and redacting the confidential patient information from them outweighs the
relevance when there are publically available versions of this information.
Plaintiff responds that the information Defendants send to the FDA about failure of the
modular necks is not available to Plaintiff and that Plaintiff is entitled to information about what
Defendants learned about failure of the PROFEMUR modular necks and when they discovered it.
The Court agrees that information about the failure of PROFEMUR modular necks and Defendants’
knowledge of that failure is relevant to Plaintiff’s claims, even if not all of it is admissible at trial.
See Fed. R. Civ. P. 36(b)(1).
Plaintiff also argues that Defendants have already produced much of the requested
information in other similar cases, so providing it in this case is not unduly burdensome and will not
require Defendants to craft a new document search. Defendants argue that Plaintiff is not entitled
to cloned discovery just because it has been produced in other cases. To the extent that Plaintiff is
arguing as to the relative burden of production, the fact that Defendants need not engineer a search
from scratch makes Plaintiff’s request less burdensome; however, to the extent that Plaintiff is
requesting that the Court compel Defendants to produce information merely because it has been
produced in other cases, and she has not specifically requested the information contained in those
documents in this case, that request is denied. Compare Peterson v. Wright Med. Tech., Inc., No.
11-1330, 2013 WL 655527, at *5 (C.D. Ill. Feb. 21, 2013) (“The very purpose of discovery is to give
the parties the opportunity to learn what their opponents know about the issues in the case. In this
case, the ‘cloned’ discovery seeks information that is relevant to plaintiff’s claims and defendants’
defenses and that it is reasonably calculated to lead to the discovery of admissible evidence on the
questions of what Wright knew and when Wright learned what it knew about the defect alleged in
the complaint and the failure that allegedly resulted from that defect.”), with Midwest Gas Servs.,
Inc. v. Ind. Gas Co., No. IP 99-690-C-D/F, 2000 WL 760700, at *1 (S.D. Ind. Mar. 7, 2000)
(“‘Cloned discovery’ requesting all documents produced or received during other litigation or
investigations, is irrelevant and immaterial unless the fact that particular documents were produced
or received by a party is relevant to the subject matter of the instant case. The plaintiffs in this Cause
have not shown that the fact that any particular document was produced . . . [in another case] . . . is
relevant to the subject matter of this Cause. Instead, the plaintiffs are interested in the content of
documents and for that they must make proper requests describing the information in which they are
interested. The plaintiffs’ counsel must do their own work and request the information they seek
Plaintiff has demonstrated that her request for documents relating to failure of PROFEMUR
products due to fretting, corrosion, and fracture is relevant and reasonably targeted, and Defendants
have not borne their burden of showing that the requests are improper or unduly burdensome.
Accordingly, Defendants must produce documents relating to all PROFEMUR modular necks, and
documents related to the failure through fretting, corrosion, and fracture, including documents and
communications between Defendants and the FDA about such failures.
Plaintiff requests up to thirty years of documents for some of its discovery requests, arguing
that the discovery she seeks is proportional given her access to information and resources as
compared to Defendants’ access and resources. Defendants argue that the thirty-year time period
is overbroad and inappropriate. Plaintiff argues that Defendants have been making claims about the
integrity of their products for thirty years, and that many of her requests are self-limiting as to time
and encompass significantly less than thirty years. Without the parties specifically pointing out
contested requests and the efforts they have already made to narrow them, the Court cannot make
a determination as to whether the thirty year span is appropriate for any particular request. To the
extent that Plaintiff is seeking general information for a period of thirty years that would require
Defendants to launch a new search, that request is overbroad and not sufficiently targeted. To the
extent that the requests are, as Plaintiff argues, self-limiting and/or have already been produced in
another case such that a new document search is unnecessary, the documents should be produced.
The Court cautions the parties of the requirement to cooperate and attempt to work out disputes as
much as possible without involving the Court. See Fed. R. Civ. P. 37(a)(1).
Definition of “Heavyweight”
In her interrogatory number 11, Plaintiff requests that Defendants “define the term
‘heavyweight patients’ as Wright understood the term: (a) prior to 3/25/08; and (b) after 3/27/08 if
its understanding of that term changed.” As drafted, the Court agrees with Defendants that the
interrogatory request is too vague and requires some context. However, Plaintiff has specified that
she seek Defendant’s definition of the term as used in its advertising of PROFEMUR products.
Especially since there is a potential conflict between the use of the term “heavyweight patients” in
advertising and the explanation in other documents that PROFEMUR products failed because of
their implantation in “heavier patients,” the Court concludes that this request is relevant to the claims
or defenses in this case, and that Plaintiff has now sufficiently clarified and limited Plaintiff’s
request. Accordingly, Defendants are required to respond to Plaintiff’s request that it define the term
“heavyweight patients” as referred to in Defendant’s advertising of PROFEMUR products both prior
to March 25, 2008, and after March 27, 2008.
For the foregoing reasons, the Court hereby GRANTS in part and DENIES in part the
Motion to Compel [DE 37], as described above. Because the motion to compel is granted in part
and denied in part, the Court “may, after giving an opportunity to be heard, apportion the reasonable
expenses for the motion.” Fed. R. Civ P. 37(a)(5)(C). Accordingly, the Court ORDERS Plaintiff
to FILE, on or before August 2, 2017, an itemization of her costs and fees, including attorney’s
fees, incurred in the Motion to Compel along with argument as to why those expenses are reasonable
in this situation, with Defendants to FILE responses to the requests for expenses and any argument
as to the reasonableness of the fees or why payment of fees is unjust, along with any requests for
payments of their own costs and fees, on or before August 16, 2017, and Plaintiff to reply on or
before August 23, 2017.
SO ORDERED this 19th day of July, 2017.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
All counsel of record
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