Avendt et al v. Covidien Inc.

Filing 40

ORDER granting in part 23 Motion to Compel - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT AND KAROL AVENDT,
Plaintiffs,

CIVIL ACTION NO. 11-CV-15538

VS.

DISTRICT JUDGE PAUL D. BORMAN

COVIDIEN, INC.,

MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant.
/
ORDER GRANTING IN PART PLAINTIFFS’ MOTION TO COMPEL DISCOVERY
(DOCKET NO. 23)
This matter comes before the Court on Plaintiffs’ Motion to Compel Discovery. (Docket no.
23). Defendant filed a response. (Docket no. 26). Plaintiffs filed a reply. (Docket no. 27). The
parties filed Statements of Resolved and Unresolved Issues. (Docket nos. 29, 30). The motion has
been referred to the undersigned for determination pursuant to 28 U.S.C. § 636(b)(1)(A). (Docket
no. 24). The Court heard oral argument on the motion on July 24, 2013 and ruled on the motion at
that time.
Plaintiffs brought this products liability and loss of consortium action against Defendant
Covidien, Inc. for injuries that allegedly resulted from the implantation of Permacol surgical mesh
during an abdominal wall surgery. Plaintiffs served their First Set of Written Discovery on
Defendant Covidien Inc. on May 22, 2012 seeking responses to sixteen interrogatories, three
document requests, and thirteen requests for admission. (Docket no. 23, ex. 1). Plaintiffs served
their Second Set of Written Discovery on Defendant on September 27, 2012 seeking responses to
eighteen document requests and one request for admission. (Docket no. 23, ex. 2). During the

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hearing on this motion and in their Statements of Resolved and Unresolved Issues, the parties
informed the Court that they have been unable to resolve their disputes prior to the motion hearing
with respect to Plaintiffs’ First Set of Interrogatories no. 16 and Second Set of Requests for
Production nos. 2 and 4. They further informed the Court that they had resolved their issues with
regard to Plaintiffs’ First Request for Production no. 2 and Second Request for Production no. 8.
Plaintiffs’ First Set of Interrogatories no. 16 asks Defendant to state whether it has ever had
communications with the FDA regarding the use of Permacol, including but not limited to the use
of Permacol for abdominal wall repairs. (Docket no. 23, ex. 1 at 10). Defendant objects based upon
the notion that the interrogatory was unduly burdensome and overly broad. Defendant also objects
on the ground that the interrogatory is not reasonably limited in scope to the product, timeframe, or
alleged injuries at issue in this case. The parties agree that Permacol has been on the market for
approximately fourteen years and is used in multiple different surgical applications. The Court finds
that Interrogatory no. 16 is overly broad and unduly burdensome. During the hearing on this motion
Plaintiffs agreed to narrow their request, and Defendant agreed to supplement its response and
provide information pertaining to all written correspondences between Defendant and the FDA from
2003 to the present related to (1) the failure to appropriately test Permacol prior to implantation for
use in abdominal wall hernia repairs, and (2) the failure to conduct testing on the clinical effects of
cross-linking, as was discussed in greater detail during the motion hearing. The Court will order
Defendant to provide a supplemental written response to this request.
Plaintiffs’ Second Request for Production no. 2 asks Defendant to produce all documents
related to the controls it put into place to control and monitor the storage temperature of the
Permacol sheet from the time Permacol leaves the warehouse to the receipt of the Permacol by the

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end user. Defendant objects based upon the notion that the request is overly broad and unduly
burdensome, and that it is not reasonably limited in scope to the product, timeframe, or alleged
injuries at issue in this case. Defendant also objects on the ground that the request is vague and
ambiguous in its use of the phrases “the controls,” “the warehouse,” and “the end user.” The Court
finds that Plaintiffs’ request is vague, overly broad in time and scope, and unduly burdensome. As
agreed during the hearing, the Court will order Defendant to produce the Device Master Record
from 2012. In all other respects Plaintiffs’ Motion to Compel further response to this request is
denied.
Plaintiffs’ Second Request for Production No. 4 asks Defendant to produce all records from
the FDA relating to adverse event reports involving Permacol products. Defendant objects on the
basis that the request is overly broad and unduly burdensome, and that it is not reasonably limited
in scope to the product, timeframe, or alleged injuries at issue in this case. Defendant further objects
on the ground that the request is vague and ambiguous in its use of the term “records from the FDA,”
and that it seeks information that is publicly available. The Court finds that this request is overly
broad in time and scope and is unduly burdensome. Furthermore, Defendant states that it has
produced all documents responsive to this request. Accordingly, the Court will order Defendant to
serve a supplemental written response containing a sworn declaration that after reasonable inquiry
Defendant has produced all documents within its possession, custody, or control that are responsive
to this document request. In all other respects Plaintiffs’ motion to compel further response to this
request is denied.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Compel Discovery (docket no.
23) is GRANTED IN PART. On or before August 19, 2013 Defendant, as provided in this Order

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and discussed in more detail during the hearing on this motion; is ordered to:
1.

serve a supplemental written response identifying information responsive to First
Interrogatory no. 16 as it relates to written correspondences between Defendant and the FDA
from 2003 to the present related to (1) the failure to appropriately test Permacol prior to
implantation for use in abdominal wall hernia repairs, and (2) the failure to conduct testing
on the clinical effects of cross-linking.

2.

produce the Device Master Record from 2012 in response to Second Request for Production
no. 2.

3.

serve a supplemental written response on Plaintiff containing a sworn declaration that after
reasonable inquiry Defendant has produced all documents within its possession, custody, or
control that are responsive to Second Request for Production no. 4.
IT IS FURTHER ORDERED that Plaintiffs’ motion is denied in all other respects.

NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under
28 U.S.C. 636(b)(1).

Dated: July 30, 2013

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Counsel of Record on this date.

Dated: July 30, 2013

s/ Lisa C. Bartlett
Case Manager

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