BRAND et al v. COOK MEDICAL INCORPORATED et al

Filing 229

ORDER ON PLAINTIFF'S EMERGENCY MOTION TO COMPEL - Based on the briefs and the argument on January 26, 2018, the Court granted in part Brand's emergency motion to compel responses to her interrogatories. Filing No. 7551 The Court ordered t he Cook Defendants to provide supplemental responses by Sunday, January 28, 2018, at 12:00 PM EST. ***SEE ORDER FOR FURTHER DETAILS***. Signed by Magistrate Judge Tim A. Baker on 1/30/2018. Associated Cases: 1:14-ml-02570-RLY-TAB, 1:14-cv-06018-RLY-TAB(JRT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
_________________________________________
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In Re: COOK MEDICAL, INC., IVC FILTERS
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MARKETING, SALES PRACTICES AND
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Case No. 1:14-ml-2570-RLY-TAB
PRODUCTS LIABILITY LITIGATION
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MDL No. 2570
_________________________________________ )
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This Document Relates to:
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1:14-cv-06018-RLY-TAB Brand
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_________________________________________ )
ORDER ON PLAINTIFF’S EMERGENCY MOTION TO COMPEL
On January 26, 2018, the Court held a telephonic status conference and heard argument
regarding Plaintiff Tonya Brand’s emergency motion to compel responses to her interrogatories
and the Third Amended Defendant Fact Sheet. [Filing No. 7551.] Following the argument, the
Court granted in part Brand’s motion to compel interrogatory responses. The Court ordered the
Cook Defendants to provide supplemented interrogatory responses by Sunday, January 28, 2018,
at 12:00 PM EST.
At issue in this emergency motion were the Cook Defendants’ responses to Interrogatory
Nos. 1, 2, and 5.
INTERROGATORY NO. 1: Please describe in detail each and every act or
omission on the part of the Plaintiff that you contend was a contributing legal
cause of the injury, illness or other losses sued upon in this action.
ANSWER: The Cook Defendants object to Interrogatory No. 1 as it is overly
broad, unduly burdensome and not reasonably calculated to lead to the discovery
of admissible evidence to the extent that it seeks “each and every act or omission”
on Plaintiff's part. The Cook Defendants further object to Interrogatory No. 1 to
the extent it seeks information protected by attorney-client privilege or the work
product doctrine. Finally, the Cook Defendants object on the basis that discovery
and the Cook Defendants’ investigation into the facts surrounding the case,
including consulting with experts regarding the same, remain ongoing. Cook
Defendants will supplement this answer as required by the Federal Rules of Civil

Procedure and any applicable Case Management deadlines established by the
Court.
INTERROGATORY NO. 2: Do you contend any person or entity other than
Cook is or may be liable in whole or in part for the claims asserted against you in
this action? If so please state for each (a) their name, (b) the legal basis for the
contention, and (c) the facts and evidence upon which the contention is based.
ANSWER: The Cook Defendants object to Interrogatory No. 2 to the extent it
seeks information protected by attorney-client privilege or the work product
doctrine. The Cook Defendants further object on the basis that discovery and the
Cook Defendants’ investigation into the facts surrounding the case, including
consulting with experts regarding the same, remain ongoing. Cook Defendants
will supplement its answer as required by the Federal Rules of Civil Procedure
and any applicable Case Management deadlines established by the Court.
...
INTERROGATORY NO. 5: Please set forth every fact supporting in whole or
in part each of the following affirmative defenses:
(a) your first affirmative defense asserting that Plaintiff's claims are barred by the '
applicable statute of limitations (limitations);
(b) your second affirmative defense asserting that Plaintiff assumed the risk
associated with use of the filter (assumption of risk);
(c) your third affirmative defense asserting that Plaintiff's claims are barred by
laches (laches);
(d) your sixth affirmative defense asserting that you had no duty to warn Plaintiff
of any risks associated with the use of the filter because the filter was supplied to
a sophisticated/learned user (learned intermediary);
(e) your ninth affirmative defense asserting that Plaintiffs damages were caused in
whole or in part by her comparative negligence, including whether this defense is
premised upon any facts distinct from those relied upon for your second, twelfth
or thirteenth affirmative defense (comparative fault);
(f) your tenth affirmative defense asserting that Plaintiffs damages were caused by
the fault of other products, persons, firms, etc. (non-party fault);
(g) your eleventh affirmative defense asserting that Plaintiffs damages were
caused by an intervening or superseding cause (intervening cause);

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(h) your twelfth affirmative defense asserting that Plaintiffs harm was caused by
misuse of the product by Plaintiff or others (product misuse);
(i) your thirteenth affirmative defense asserting that Plaintiffs harm was caused by
modification or alteration of the device after delivery of the device to the initial
consumer (product misuse);
(g) your sixteenth affirmative defense asserting that Plaintiffs claim is barred in
whole or in party by her failure to mitigate damages (failure to mitigate); and
(k) your seventeenth affirmative defense asserting that Plaintiffs claim is barred
because her injuries and damages were caused by medical conditions, diseases,
etc., unrelated to the Cook Defendants (preexisting/other conditions).
ANSWER: Objection. The Cook Defendants object to Interrogatory No. 5, and
each of its subparts, as it is overly broad, unduly burdensome and not reasonably
calculated to lead to the discovery of admissible evidence to the extent that it
seeks "every fact" related to the "affirmative defense" information sought. The
Cook Defendants further object to Interrogatory No. 5, and each of its subparts, to
the extent they seek information protected by the attorney-client privilege or the
work product doctrine. Finally, the Cook Defendants object to Interrogatory No.
5, and each of its subparts, on the basis that discovery and the Cook Defendants’
investigation into the facts surrounding the case, including consulting with experts
regarding the same, remain ongoing. The Cook Defendants will supplement its
answer as required by the Federal Rules of Civil Procedure and any applicable
Case Management deadlines established by the Court.
[Filing No. 7551-1, at ECF pp. 2–6.]
As the responses reflect, the Cook Defendants raised a number of objections to these
interrogatories, but provided no substantive responses. The idea that the Cook Defendants
cannot produce a single fact in response to these interrogatories strains credulity. The Cook
Defendants did not argue that they had no facts to produce. Rather, after raising a litany of
objections, the Cook Defendants argued that they do not have a complete picture of the evidence
and responding now “likely will necessitate multiple supplemental answers along the path of
discovery, require Cook to prematurely commit to positions, and force the disclosure of what
currently is attorney work product.” [Filing No. 7557, at ECF p. 3 (citing U.S. ex rel. Tyson v.
Amerigroup Illinois, Inc., 230 F.R.D. 538, 545–46 (N.D. Ill. 2005)).]
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However, the Tyson court merely exercised its discretion in the factual context of that
case and determined the interrogatories there were premature. Tyson, 230 F.R.D. at 544–45.
The circumstances here do not support forcing Brand to wait for responses. This MDL was
consolidated in 2014. Discovery has been extensive. The Cook Defendants must possess some
facts responsive to these straightforward interrogatories. Failing to produce anything under the
guise of incomplete research is not acceptable, nor is putting up a smokescreen of objections.
Further, this motion came on the eve of a trial deposition of a treating doctor who will not appear
at trial. This deposition will be Brand’s only opportunity to examine this witness under oath.
Nothing in Tyson suggests the Court should exercise its discretion to force Brand to go into this
important deposition “blind.” See id.
Therefore, based on the briefs and the argument on January 26, 2018, the Court granted
in part Brand’s emergency motion to compel responses to her interrogatories. [Filing No. 7551.]
The Court ordered the Cook Defendants to provide supplemental responses by Sunday, January
28, 2018, at 12:00 PM EST. 1
Date: 01/30/2018

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

Distribution to all-ECF registered counsel of record by email.
Distribution to all non-registered counsel of record to be made by Plaintiffs' Lead Counsel.
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The motion to compel also sought additional information in the defense fact sheet. At the
January 23 status conference, Brand acknowledged that the Cook Defendants’ deficient
interrogatory responses were the more pressing concern and the impetus for the “emergency”
motion to compel. With this emergency resolved, the Court now denies Brand’s motion to
compel as to the defense fact sheets. This denial, however, is without prejudice to Brand’s
ability to continue to press this shortcoming with the Cook Defendants and, if necessary, to ask
the Court to revisit this issue on a non-emergency basis.
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