Cutsinger v. Gyrus Acmi, Inc. et al

Filing 144

MEMORANDUM AND ORDER re 141 - This matter was before the Court on defendants Gyrus ACMI, Inc., Gyrus ACMI, L.P., Olympus America Inc., and Olympus Corporation of the Americas' Motion to Preserve Evidence and Motion for Leave to Conduct Rule 35 Inspection to Collect Decedent's Tissue Samples. Plaintiff opposes the motion and filed a Cross Motion for a Protective Order, as well as an Unopposed Emergency Motion for Expedited Ruling on Plaintiff's Motion for Protective Order and Defendants' Motion to Preserve Evidence. In an Order dated todays date, the Court granted plaintiff's motions for an expedited ruling and for a protective order, and denied defendants' motion to preserve evidence and to conduct a Rule 35 inspection. This Memorandum and Order sets forth the reasons for the Court's rulings.....{see Memorandum and Order for complete details}.... Signed by District Judge Charles A. Shaw on 3/1/2019. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ELICIA CUTSINGER,

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Plaintiff,
v.
GYRUS ACMI, INC., et al.,
Defendants.

No. 4:18-CV-4 CAS

MEMORANDUM AND ORDER
This matter was before the Court on defendants Gyrus ACMI, Inc., Gyrus ACMI, L.P.,
Olympus America Inc., and Olympus Corporation of the Americas’ Motion to Preserve Evidence
and Motion for Leave to Conduct Rule 35 Inspection to Collect Decedent’s Tissue Samples.
Plaintiff opposes the motion and filed a Cross Motion for a Protective Order, as well as an
Unopposed Emergency Motion for Expedited Ruling on Plaintiff’s Motion for Protective Order and
Defendants’ Motion to Preserve Evidence. In an Order dated today’s date, the Court granted
plaintiff’s motions for an expedited ruling and for a protective order, and denied defendants’ motion
to preserve evidence and to conduct a Rule 35 inspection. This Memorandum and Order sets forth
the reasons for the Court’s rulings.
Background and Discussion
The Court was informed that the plaintiff in this case, Elicia Cutsinger, died the evening of
February 26, 2019. In her Complaint, plaintiff alleges that in 2013 she underwent a laparoscopic
surgical procedure in which the surgeon used a device, the GYRUS LPM Plasma Morcellator, to
morcellate, or cut into small fragments, her uterus. Plaintiff alleges the Defendants marketed,
distributed, and/or sold the GYRUS LPM Plasma Morcellator. She alleges subsequent to that

surgery, she was diagnosed with leiomyosarcoma, a deadly form of uterine sarcoma, and that the
malignant cells were spread throughout her abdomen and pelvis by the GYRUS LPM Plasma
Morcellator, worsening her condition.
In their motion and memorandum, filed yesterday afternoon, defendants request that the
Court order the preservation of plaintiff’s remains to allow tissue samples to be taken and for
pathologic testing. Defendants argue that plaintiff’s medical condition is at issue in this case, and
retained experts in this matter “disagree as to the nature of [Ms. Cutsinger]’s disease process.” Doc.
136 at 2. In support of their motion, defendants attach to their memorandum the expert report of Dr.
Robboy and excerpts from Dr. Cao’s deposition. Defendants, however, have not submitted
evidence, such as an affidavit, explaining why information obtained from an autopsy or post-mortem
tissue samples are necessary in this case. In other words, what more would be obtained from an
autopsy or post-mortem tissue samples than is already available from the numerous biopsies and
tissue samples that have been taken to date.1
Plaintiff’s counsel filed a memorandum in opposition and cross motion this morning, March
1, 2019. Plaintiff’s counsel states that he opposes defendants’ motion on procedural and substantive
grounds, and asserts that defendants’ request is overly broad and non-specific, in that defendants
have not stated what they intend to do and when. However, the memorandum states that in a “good
faith endeavor to accommodate defendants’ request,” plaintiff’s family made arrangements at their
expense to have “an independent autopsy” performed at the University of Missouri by Dr. Adelstein

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Defendants also attached to their motion email correspondence between plaintiff’s counsel
and defendants’ counsel. Plaintiff’s counsel informed defendants’ counsel of Ms. Cutsinger’s death
at approximately 1:00 p.m. on February 27, 2019. Defendants’ counsel responded at 1:35 p.m. with
an email requesting that Ms. Cutsinger’s “body be preserved.”
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on today’s date at 11:00 a.m.2 Plaintiff’s counsel represents that Dr. Adelstein “is not working as
a consultant expert or retained expert, and the autopsy will generate a medical record accessible to
all parties. Further, the scope of review includes to preserve tissue from pelvic masses in accordance
with appropriate protocols for the preparation of slides.” Doc. 137 (quotations omitted).3 Plaintiff’s
counsel also represents it is hospital policy that outside consultants are not permitted at the autopsy,
and neither plaintiff not defendants can have a consultant or expert there.
According to plaintiff’s memorandum, Ms. Cutsinger’s body was at a funeral home in
Hannibal, Missouri, and arrangements were made to transport her body to Columbia, Missouri for
the autopsy this morning, and for the return of her body to Hannibal for embalming and burial
preparations. Plaintiff’s counsel states that Ms. Cutsinger’s family desires to have an open viewing
and burial early next week.
Defendants filed a reply memorandum in support of their motion, in which they state they
were informed about the scheduled autopsy yesterday evening. Defendants object to the autopsy
as arranged because it was done without their input, and their pathology expert cannot be present.
Defendants state that they provided plaintiff’s counsel with a sample autopsy protocol and requested
that the autopsy be complete and with a focus on the cause of death “as well as the extent of
plaintiff’s underlying disease process.” Doc. 139 at 2. Defendants ask in their reply that the Court

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Plaintiff’s counsel represents that 11:00 a.m. is latest time available that the autopsy could
be performed today.
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Plaintiff’s counsel attached to the memorandum an email dated February 28, 2019, at 2:14
p.m. from plaintiff’s counsel to the University of Missouri, in which he asks that the hospital
perform an autopsy, wherein the scope of review is “(1) to perform an autopsy as you deem
reasonably appropriate to determine cause of death, if possible; and (2) to preserve tissue from
pelvic masses in accordance with appropriate protocols for the preparation of slides.” Doc. 137, Ex.
B.
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“allow defendant’s pathology expert, Julie Turner, to be present at the autopsy at 11:00 a.m. and,
consistent with the protocol that she outlined, collaborate with Dr. Adelstein and gather relevant
tissue samples, obtain information about the cause of Plaintiff’s death and take any necessary
photographs.” Id. at 3-4.
Plaintiff’s counsel filed a document entitled Plaintiff’s Supplemental Response [in] Support
of Cross Motion for a Protective Order and Response to Defendant’s Motion to Preserve the Body,
in which he stated that defendants’ proposed autopsy protocol was sent to the University of Missouri
shortly after being received. Attached to the document was an email dated March 1, 2019, at 8:38
a.m., from plaintiff’s counsel to the University attaching a PDF document entitled “CAP Practice
Guidelines for Autopsy.” Doc. 140 at 5.
Based on defendants’ reply, the Court finds defendants have abandoned their general request
for the preservation of Ms. Cutsinger’s body and for a Rule 35 inspection to allow tissue samples
to be taken and for pathologic testing. As for defendants’ request that the Court allow defendants’
expert to be present at the scheduled autopsy, defendants have provided the Court with no authority
to support such request. They have not explained why, in light of the fact that the autopsy is being
performed as a formal independent autopsy, the presence of their expert is necessary. Moreover,
the request was not made in a timely manner to accommodate such a request. The Court recognizes
that the request was made within a day of defendants’ being notified of the scheduled autopsy. That
said, it is apparent from the record in this case that Ms. Cutsinger’s death was not unexpected. The
parties could have made arrangements long ago for what to do in the event of her death with regard
to an autopsy and the taking of tissue samples. The Court is not inclined to add to the grief of Ms.
Cutsinger’s family by delaying their funeral arrangements, especially because defendants have not
articulated in what way the autopsy, as arranged, is prejudicial to them and their collection of
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evidence. As for defendants’ proposed autopsy protocol, plaintiff’s counsel did forward this
document to the hospital for Dr. Adelstein’s review. The procedures Dr. Adelstein followed in
conducting the autopsy can be addressed later in these proceedings.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 1st day of March, 2019.

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