Williams et al v. Smith & Nephew Inc.

Filing 481

MEMORANDUM in all actions Signed by Judge Catherine C. Blake on 7/27/2020. Associated Cases: 1:17-md-02775-CCB et al.(cags, Deputy Clerk)

Case 1:14-cv-03138-CCB Document 481 Filed 07/27/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
In re: Smith & Nephew
Birmingham Hip Resurfacing
(BHR) Hip Implant Products
Liability Litigation

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MEMORANDUM

MDL No. 2775
Master Docket No. 1:17-md-2775
Judge Catherine C. Blake
THIS DOCUMENT RELATES
TO ALL ACTIONS

Now pending is the plaintiffs’ motion to compel. (ECF 2207). The plaintiffs move to
compel: 1) Dr. Peter Heeckt’s employment file; 2) four additional hours of deposition of David
Telling without Smith & Nephew’s proposed restrictions on questions; 3) the deposition of Bill
Aubrey; and 4) a detailed history, audit trail and/or timeline for the internal review and
production of certain documents that were produced after depositions were already completed.
1. Dr. Peter Heeckt’s employment file
The plaintiffs seek Heeckt’s employment file,1 particularly Heeckt’s performance
evaluations and documents related to his leaving Smith & Nephew. The plaintiffs believe that
these documents may show that Heeckt was forced to leave Smith & Nephew because he was
adamant about warning surgeons about the failure rates of BHR products in women. (ECF 4291, Mot. at 4). The plaintiffs cite to an email produced during discovery which appears to show a
Smith & Nephew senior executive threatening to fire other employees for refusing to or not
doing enough to promote the BHR products in regard to reported BHR failure rates. (ECF 22072, Ex. A Part 1, Sept. 3, 2010, email from J. DeVivo). They also state that after Heeckt left
Smith & Nephew for its subsidiary in 2012, his replacement did not carry out Heeckt’s efforts to
warn surgeons. In response, Smith & Nephew argues that the plaintiffs have provided no

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The plaintiffs use the term “employment file” and Smith & Nephew uses the term “personnel file.” The court
assumes that these are the same.

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evidence to support their theory that Heeckt was moved to a subsidiary because of his efforts to
warn surgeons about the BHR products, and that privacy interests weigh against producing
Heeckt’s personnel file.
Generally, “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case[.]” Fed. R. Civ.
P. 26.(b)(1). But “[b]ecause personnel files contain very sensitive private information about nonparties to this litigation, this Court must weigh the significant privacy interests at stake against
the need for the information contained in the personnel files.” Halim v. Baltimore City Bd. of
Sch. Comm'rs, No. WMN-11-2265, 2012 WL 2366338, at *2 (D. Md. June 20, 2012).2 “The
Fourth Circuit has indicated that a court should weigh the relevance of the personnel files to the
pending matter against the employee's privacy interests.” Weckesser v. Knight Enterprises S.E.,
LLC, No. 2:16-CV-2053-RMG, 2019 WL 2090098, at *3 (D.S.C. May 13, 2019) (citing
Kirkpatrick v. Raleigh Cty. Bd. of Educ., 78 F.3d 579 (4th Cir. 1996) (unpublished)).
Whether Heeckt’s departure in February 2012 was related to his attempts to warn
surgeons about the BHR devices is a relevant line of inquiry for the plaintiffs. Heeckt himself,
who no longer works for Smith & Nephew and apparently has moved to Costa Rica, is not
available for a deposition. Accordingly, his employment files from 2011 and 2012 may be a
reasonable alternative source of information. Plaintiffs’ counsel argued that the performance
evaluations from 2008–2012 are also relevant, to the extent they may show a change in
evaluations coinciding with Heeckt’s attempts to warn surgeons. The court agrees. The
relevance of these documents, however, must be balanced against Heeckt’s privacy interest in his
employment file, which may contain personal information entitled to confidentiality. Smith &

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Unreported cases are cited for the soundness of their reasoning, not for any precedential value.

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Nephew has offered to provide the file for in-camera review, which the court believes will best
balance the plaintiffs’ need for potentially relevant documents with Heeckt’s privacy interests.
Therefore, the court will review in camera Heeckt’s employment file from 2011-2012, as well as
his performance evaluations from 2008–2012, in order to determine whether they are in fact
relevant to the plaintiffs’ theory of Heeckt’s departure. As to the other pre-2011 documents in
Heeckt’s employment file, the court does not find that their potential relevance outweighs
Heeckt’s privacy interests because they predate Heeckt’s departure by over a year. To the extent
it has not done so, Smith & Nephew should also look for any responsive documents (such as
emails or memos) not contained in Heeckt’s employment file that discuss the circumstances of
Heeckt’s departure, as requested by the plaintiffs in their request for production of documents.
2. David Telling
The plaintiffs have already deposed Telling but, after his deposition, Smith & Nephew
produced an email that the plaintiffs wish to question Telling about, and which they state would
have changed the way they questioned Telling about other subjects. Smith & Nephew states that
it has agreed the plaintiffs may explore subjects already covered as needed to understand the
document, and that when a deposition is reopened because of new information, it should be
confined to issues relating to that new information. See United States v. Prevezon Holdings,
Ltd., 320 F.R.D. 112, 115 (S.D.N.Y. 2017). While the court agrees that the deposition should
focus on the newly produced information, it recognizes the plaintiffs’ contention that they would
have asked questions differently if they had the new information. Any limitations would involve
difficult line-drawing issues during the deposition and could lead to more disputes. The court
will therefore not impose any specific restrictions on the deposition.

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It does not appear that the parties dispute the amount of time the plaintiffs will have to
depose Telling, as the plaintiffs’ counsel acknowledged during oral argument that any
disagreement is slight and not worth bringing to the court’s attention. The plaintiffs will be able
to use the time remaining under CMO 11 (providing a presumptive maximum of seven hours on
the record), which is 3 hours and 41 minutes.
3. Bill Aubrey
Bill Aubrey is a U.K. employee of Smith & Nephew. He was previously scheduled for
deposition but then produced a doctor’s note stating he was not able to give a deposition due to
his health conditions. Aubrey now provides more detailed information about his medical
conditions in a sworn statement attached to Smith & Nephew’s opposition to the motion to
compel. Based on the sworn statement and the doctor’s note, the court will not require Aubrey
to give a deposition. Further, although there is an email from Aubrey to Telling about which the
plaintiffs wants to question Aubrey, the plaintiffs will have additional time to re-depose Telling,
who was Aubrey’s supervisor, about the same email. Counsel is instructed, however, to confer
as to whether an alternative – such as having Aubrey complete an affidavit about the email –
may be possible.3
4. Detailed history, audit trail, and/or timeline
The plaintiffs seek a detailed history, audit trail and/or timeline for the production of
certain documents after witness depositions were completed. Specifically, the plaintiffs
reference two emails that they contend should have been produced sooner; one in particular

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At oral argument, the court and counsel discussed deposition by written questions, pursuant to Federal Rule of
Civil Procedure 31, but as Smith & Nephew explained, this would still involve live, on-the-record questioning,
which is not consistent with Aubrey’s health concerns. See Fed. R. Civ. P. 31(b); id. 30(c)(3) (“Instead of
participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing
the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record
the answers verbatim.”).

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involved Telling and was produced the night after his deposition, along with approximately
1,000 other documents. That these two emails were produced after relevant depositions is not
enough to justify discovery into Smith & Nephew’s production of documents, which would
invade Smith & Nephew’s work product and attorney-client privilege. Fish v. Air & Liquid Sys.
Corp., No. CV GLR-16-496, 2017 WL 697663, at *6 (D. Md. Feb. 21, 2017) (“[T]he manner in
which Ford and its attorneys conducted discovery (e.g. who was involved and ‘all documents
concerning same’)—'discovery on discovery’—is not an appropriate topic of discovery and
numerous courts have disallowed such discovery.”).
CONCLUSION
For the reasons stated above, the court grants in part and denies in part the motion to
compel. Specifically, 1) Smith & Nephew shall produce for in camera review the documents
from Dr. Heeckt’s employment/personnel file from 2011–2012 and his performance evaluations
from 2008–2012; 2) Smith & Nephew shall produce any other responsive documents, including
correspondence or emails, about the reasons for Heeckt’s departure to the plaintiffs, to the extent
it has not already done so; 3) the plaintiffs may take the deposition of Telling for an additional 3
hours and 41 minutes, with respect to the newly produced information, but without specific
limits to the questions; 4) the plaintiffs may not take the deposition of Bill Aubrey, but counsel
should work cooperatively to find an alternative means by which Aubrey may explain the email
in question, such as through affidavit; and 5) the plaintiffs are not entitled to a detailed history,
audit trail, or timeline of production of documents.
Smith & Nephew shall produce the documents related to Dr. Heeckt within 10 days of the
date of this memorandum and accompanying order. The documents to be reviewed in camera

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should be produced either through electronic filing under seal or by confidential email to
chambers.4 A separate order follows.

____7/27/20_____
Date

/S/
Catherine C. Blake
United States District Judge

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Smith & Nephew should inform the court which method it prefers.

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