Bayes et al v. Biomet, Inc. et al

Filing 83

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that 78 Defendants' Motion for Protective Order and 79 Plaintiffs' Motion to Compel are GRANTED in part, and DENIED in part, as set forth in detail herein. Signed by District Judge Stephen R. Clark on 5/14/2020. (CLO)

Case: 4:13-cv-00800-SRC Doc. #: 83 Filed: 05/14/20 Page: 1 of 2 PageID #: 2277

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARY BAYES and PHILIP BAYES,
Plaintiff(s),
vs.
BIOMET, INC., et al.,
Defendant(s).

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Case No. 4:13-cv-00800-SRC

MEMORANDUM AND ORDER
This matter comes before the Court on [78] Defendants’ Motion for Protective Order and
[79] Plaintiffs’ Motion to Compel. These cross-motions pertain to the same discovery disputes.
As set forth in greater detail below, the Court grants in part, and denies in part, both motions.
Common Issue Discovery – Plaintiffs seek to compel depositions of numerous
individuals who were previously deposed during the “common issue” phase of discovery in the
MDL. Defendants argue that general or common issue discovery is closed per the MDL judge’s
remand order. On March 12, 2020, the MDL judge ordered Defendant Biomet, Inc. to “produce
to the Plaintiffs’ Steering Committee the common issue written discovery and common issue
depositions provided and taken in state-court Biomet M2a hip implant cases and produced to the
state-court plaintiffs before the date of this order.” Doc. 79-1 at 17. Per the parties’
submissions, the Court understands that Biomet has not yet produced to the Steering Committee,
or to the Plaintiffs in this case, all materials referenced in the MDL judge’s order. The Court
hereby orders Defendants to produce to Plaintiffs, on or before June 1, 2020, the common issue
written discovery and common issue depositions provided and taken in state-court Biomet M2a
hip implant cases and produced to state court plaintiffs on or before March 12, 2020.

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Case: 4:13-cv-00800-SRC Doc. #: 83 Filed: 05/14/20 Page: 2 of 2 PageID #: 2278

Sales Representative Depositions – Plaintiffs seek to compel the depositions of five sales
representatives whose identities Defendants did not disclose until February 2020: Jake Weible,
Mike Davis, Brian Scott, Matt Kliethermes, and Jason Kem. Doc. 81-2 at 4. In the parties’ Joint
Motion for Entry of Third Amended Case Management Order, Plaintiffs represented to this
Court, as justification for their request to extend the discovery period: “Biomet supplemented
their Defendant Fact Sheet in February 2020. Plaintiffs would like the opportunity to depose Mr.
Weibel [sic].” Doc. 74 at 4. Accordingly, the Court grants Plaintiffs’ Motion to Compel the
deposition of Jake Weible only. The Court grants Defendants’ Motion for Protective Order as to
the depositions of Davis, Scott, Kliethermes, and Kem.
Punitive Damages Discovery – Plaintiffs seek to compel a 30(b)(6) corporate
representative deposition on the subject of punitive damages. Defendants argue that punitive
damages discovery is common issue discovery, which is closed. The Court orders Defendants to
produce, on or before June 1, 2020, current financial statements showing their net worth.
Evidence of Defendants’ net worth “will become a part of the evidentiary record only if, at the
close of all the other evidence, plaintiff has made a prima facie case of entitlement to punitive
damages.” Bessier v. Precise Tool & Eng'g Co., 778 F. Supp. 1509, 1513 (W.D. Mo. 1991).
The Court grants Defendants’ motion for a protective order as to the 30(b)(6) deposition.
Accordingly,
IT IS HEREBY ORDERED that [78] Defendants’ Motion for Protective Order and [79]
Plaintiffs’ Motion to Compel are GRANTED in part, and DENIED in part, as set forth in detail
herein.
So Ordered this 14th day of May, 2020.

STEPHEN R. CLARK
UNITED STATES DISTRICT JUDGE
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