Burks et al v. Abbott Laboratories et al

Filing 269

ORDER denying defendant Abbott Laboratories' 210 Appeal/Objection of Magistrate Judge Decision to District Judge re 209 Order on Motion to Compel; affirming Magistrate Judge's 209 Order on Motion to Compel(Written Opinion). Signed by Judge John R. Tunheim on October 31, 2011. (DML)

UNITED STATES District COURT
DISTRICT OF MINNESOTA
ROCKLAND BURKS and ADRIENNE
LAWRENCE, individually and as parents
and natural guardians of E.B.,

Civil No. 08-3414 (JRT/JSM)

Plaintiffs,
v.
ABBOTT LABORATORIES and MEAD
JOHNSON & CO.,

ORDER AFFIRMING ORDER OF
MAGISTRATE JUDGE DATED
JULY 8, 2011

Defendants.

Richard H. Taylor, TAYLOR MARTINO, 51 Saint Joseph Street, Mobile,
AL 36601; W. Lloyd Copeland, TAYLOR MARTINO, PO Box 894
Mobile, AL 36601; Stephen C. Rathke and Kate G. Westad, LOMMEN,
ABDO, COLE, KING & STAGEBERG, PA, 80 South Eighth Street,
Suite 2000, Minneapolis, MN 55402; Kara Hadican Samuels,
SANGISETTY & SAMUELS, LLC, 610 Baronne Street, 3rd Floor, New
Orleans, LA 70113, for plaintiffs.
June K. Ghezzi, Melissa B. Hirst, Kelly M. Marino, and Paula S. Quist,
JONES DAY, 77 West Wacker Drive, Suite 3500, Chicago, IL 60601;
Robert Bennett, Sara H. Daggett, and William J. Tipping, GASKINS,
BENNETT, BIRRELL, SCHUPP, LLP, 333 South Seventh Street, Suite
2900, Minneapolis, MN 55402, for defendant Abbott Laboratories.
Anthony J. Anscombe, David J. Grycz, Diana L. Geseking, and Karen E.
Woodward, SEDGWICK LLP, One North Wacker Drive, Suite 4200,
Chicago, IL 60606; Brian W. Thomson, Jonathon T. Naples, and Frederick
W. Morris, LEONARD STREET AND DEINARD, PA, 150 South Fifth
Street, Suite 2300, Minneapolis, MN 55402, for defendant Mead Johnson &
Co.

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Rockland Burks and Adrienne Lawrence (collectively, “the Burks”) brought this
action against defendants Abbott Laboratories (“Abbott”) and Mead Johnson & Company
(“Mead”), alleging products liability claims relating to their daughter‟s consumption of
powdered infant formula (“PIF”). On April 20, 2010, this Court granted in part and
denied in part defendants‟ motions to dismiss the Burks‟ Fourth Amended Complaint.
(Docket No. 130.) The Burks‟ remaining claims are premised on an inadequate warning
claim under the Louisiana Product Liability Act (“LPLA”). On July 8, 2011, United
States Magistrate Judge Janie S. Mayeron issued an order granting in part and denying in
part plaintiffs‟ motion to compel Abbott‟s disclosure or discovery. (Docket No. 209.)
Before the Court are Abbott‟s objections to the Magistrate Judge‟s order. For the reasons
set forth below, the Court affirms the Order.

BACKGROUND
On June 19, 2006, the Burks‟ daughter, Evan, was born in Louisiana. (Fourth Am.
Compl. (“FAC”) ¶ 6, Docket No. 111.) Evan was born full term, and for the first 28 days
of her life had a normal immune system for her age. (Id. ¶ 7.) In June 2006, prior to
Evan‟s birth, Abbott sent unsolicited mailings including packets of PIFs to the Burks at
their home address in Louisiana. (Id. ¶ 8.) On or around June 26, 2006, the Burks
purchased two cans of PIF manufactured by Mead. (Id. ¶ 9.) On June 26, 2006, the
Burks began feeding Evan the PIFs. (Id. ¶ 10.) On July 2, 2006, after showing signs of
illness, Evan was admitted to the hospital and diagnosed with neonatal Enterobacter
sakazakii (“E. sak”) meningitis, which caused her to suffer severe brain damage. (Id.

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¶ 12.) The Burks claim that the bacteria that caused Evan‟s illness originated from “the
bacteria colony or its progeny” that contaminated Abbott‟s and Mead‟s PIF facilities,
finished product PIF prior to distribution, and/or cans of PIF. (Id. ¶¶ 17-18.)
The Burks have filed a total of five Complaints. In response to each complaint,
defendants moved to dismiss. In response to the motions to dismiss the FAC, this Court,
in an April 20, 2010 Order, concluded that the Burks had pled a plausible claim for
inadequate warning under the LPLA but dismissed with prejudice the Burks‟ allegations
that were not based on inadequate warning claims. (Docket No. 130.)
On June 16, 2010, the Burks served written discovery on the defendants. Abbott
did not deliver the majority of its documents to the Burks until November 12, 2010.
After a series of correspondence between the parties attempting to resolve the discovery
disputes, the Burks notified Abbott of their intention to seek a notice to compel and
finally sought a motion to compel. The motion was granted in part and denied in part by
the Magistrate Judge. (Docket No. 172.) Abbott objects to portions of that order.

ANALYSIS
I.

STANDARD OF REVIEW
The standard of review for an appeal of a magistrate judge‟s order on a non-

dispositive issue is extremely deferential.

Reko v. Creative Promotions, Inc., 70

F. Supp. 2d 1005, 1007 (D. Minn. 1999). The Court must affirm the order unless it is
clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); D. Minn. LR 72.2(a).

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II.

DEFENDANT ABBOTT LABORATORIES’ OBJECTIONS
Before the Court are Abbott‟s objections to the Magistrate Judge‟s Order granting

the Burks‟ motion to compel discovery of (1) all of Abbott‟s positive Enterobacteriaceae
(“Eb”) or E. sak findings “for all raw products, finished products and the environment at
its Casa Grande plant between January 1, 2002 and June 26, 2006” (Order at 15);
(2) transcripts from all prior depositions of Abbott employees taken in connection with
any E. sak litigation (id. at 19-21); and (3) all documents related to Abbott‟s involvement
in the International Formula Counsel (IFC)‟s development of a document entitled
“Industry Proposal on Formula Testing” (id. at 21-23). (Abbott Labs.‟s Objections to the
Magistrate‟s July 8, 2011 Order on Pl.‟s Mot. to Compel at 2-3, Docket No. 210.)

A.

Abbott’s Positive Enterobacteriaceae or E. sak Findings

Abbott asserts the Order compelling production of all of Abbott‟s positive Eb or
E. sak findings for all products and the environment at its Casa Grande plant was
erroneous because positive Eb findings were never the subject of a discovery request and
the results of Eb tests would be irrelevant to any issue in this case. Abbott also asserts
that the test results would be irrelevant for any product manufactured at the Casa Grande
plant other than PIF. However, this Court agrees with the Magistrate Judge that the
expert evidence submitted by the Burks provides adequate support that testing on other
products is relevant because of the danger of cross-contamination from other products
made on the same equipment. (See Order at 9, 14-15.)

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Regarding the inclusion of Eb test results, the Magistrate Judge noted that
[a]t oral argument, plaintiffs‟ attorney admitted that the requests did not ask
for testing for Eb, but according to counsel, it is common for manufacturers
to test for Eb, not E. sakazakii. Because E. sakazakii is a member of the Eb
family, counsel argued that plaintiffs‟ request for Eb testing was
“essentially the same” as their request for E. sakazakii testing. . . . Abbott‟s
counsel stated that Abbott did test for Eb and that if there were any positive
results, it conducted a follow-up for specific testing for E. sakazakii.
(Id. at 9.)
Abbots asserts that test results for Eb at its Casa Grande plant are irrelevant.
Because E. sak is a member of the Eb family, a sample containing E. sak would produce
a positive result in either an Eb test or a test specific for E. sak. Eb test results are,
therefore, relevant for the purposes of determining the presence of E. sak; indeed, an Eb
test could be considered a type of test for E. sak. Abbott asserts that because it tests for
Eb and “if there are any positive results, conducts a follow-up test to specifically test for
E. sak” that any test results “that may have been positive for Eb – but negative for E. sak
– cannot logically (or legally) show that the Abbott product at issue actually contained E.
sak.” (Abbott Labs.‟s Objections to the Magistrate‟s July 8, 2011 Order on Pl.‟s Mot. to
Compel at 11-12.) However, as the Magistrate Judge noted, the Burks provide expert
evidence that there “is not necessarily a uniform distribution of E. sakazakii within
PIF. . . . A negative result for a given sample does not mean that the entire lot is negative
or that any individual package from a lot will be negative.” (Order at 12.) Therefore, a
positive test for Eb in one sample, even in the presence of a negative test E. sak from a
different sample from the same lot, would not necessarily mean that the lot did not
contain E. sak. Thus, the Magistrate Judge did not commit clear error by compelling the
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production of Eb test results because a request for positive E. sak tests could reasonably
include positive Eb test results, and positive Eb tests would be relevant.

B.

Deposition Transcripts

Abbott asserts that the Order compelling deposition transcripts is contrary to law
because the Burks never moved to compel such a broad production and the Burks have
failed to make a showing that the depositions have relevance to the remaining issues in
this case.1 However, the Burks‟ motion to compel requested exactly what the Magistrate
Judge Order compelled: a “finding and determination that prior deposition transcripts of
Abbott personnel in E. sakazakii litigation are discoverable, ordering Defendant to
produce copies of all deposition transcripts and their exhibits.” (Pl.‟s Mot. to Compel
Abbott‟s Disclosure or Disc. ¶ 4, Docket No. 172.) The Court agrees with the Magistrate
Judge‟s determination that the deposition transcripts are relevant to the remaining issues
in the case because they may “contain evidence that reflects Abbott‟s knowledge
regarding E. sakazakii, how Abbott formulated its package labeling and warnings . . .
how Abbott tested for the presence of E. sakazakii, and how frequently it detected
E. sakazakii at its manufacturing plants.”

(See Order at 21.)

Therefore, the Order

compelling deposition transcripts is neither contrary to law nor clearly erroneous.

1

In support of its contention, Abbott alleges that it is citing to the Burks‟ Motion to
Compel (Docket No. 172) but quotes from (and includes the docket number of) the Burks‟
Memorandum in Support of Motion to Compel (Docket No. 174).
2
“[I]t is axiomatic that „[t]he party opposing discovery bears the burden of showing that
the discovery request is overly broad and burdensome by alleging facts demonstrating the extent
and nature of the burden imposed by preparation of a proper response.‟” E.E.O.C. v. Schwan’s

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C.

International Formula Counsel

Abbott contends the Order compelling production of IFC-related documents is
erroneous because the plaintiffs failed to request the documents during discovery.
However, the Magistrate Judge found that the plaintiffs‟ request fell within their prior
broad request for “all documents concerning Enterobacter sakazakii.‟” (Id. at 22 (citing
Doc. Req. No. 11).) The Magistrate Judge noted that in another circumstance she might
have found this request overly broad. (Id.) However, because Abbott had failed to meet
its burden of demonstrating that the discovery request was overly broad or burdensome
by alleging specific facts demonstrating the extent and nature of the burden imposed,2 the
Magistrate Judge declined to find the original request was overly broad. (Id.) The
Magistrate Judge also ordered that it was in the interests of justice for Abbott to produce
its IFC documents because she had ordered that Mead produce its IFC documents. (Id. at
22-23.)

The Magistrate Judge gave extensive reasons why the production of these

documents was relevant to the Burks‟ claims of inadequate warning and referenced these
reasons. (Id. at 22-23, 26-27.) In conclusion, the Magistrate Judge‟s determination that
the Burks‟ original discovery request concerning the IFC documents is reasonable, and
the order to compel disclosure of these documents is not clearly erroneous.

2

“[I]t is axiomatic that „[t]he party opposing discovery bears the burden of showing that
the discovery request is overly broad and burdensome by alleging facts demonstrating the extent
and nature of the burden imposed by preparation of a proper response.‟” E.E.O.C. v. Schwan’s
Home Serv., 692 F. Supp. 2d 1070, 1087 n.12 (quoting Sinco, Inc. v. B & O Mfg., Inc., No. 035277, 2005 WL 1432202 at *2 (D. Minn. May 23, 2005)).

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The Court concludes that the Magistrate Judge‟s order was not clearly erroneous
or contrary to law.

ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS
HEREBY ORDERED that defendant Abbott Laboratories‟ appeal of the Magistrate
Judge‟s Order [Docket No. 210] is DENIED and the Magistrate Judge‟s Order on
Plaintiffs‟ Motion to Compel dated July 8, 2011 [Docket No. 209] is AFFIRMED.
DATED: October 31, 2011
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

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