Garner v. Ethicon Endo-Surgery, Inc. et al
ORDER by Magistrate Judge Gregory B. Wormuth denying 32 Motion to Compel. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARIE A. GARNER,
Civ. No. 18‐181 MV/GBW
ORDER DENYING DEFENDANT’S MOTION TO COMPEL
THIS MATTER comes before the Court on Defendant’s Motion to Compel
Complete Discovery Responses from Plaintiff. Doc. 32. For the reasons explained
below, the Court will DENY Defendant’s motion.
On January 29, 2018, Plaintiff filed a “Complaint for Personal Injury Due to
Product Liability and Medical Negligence” in state court against Ethicon Endo‐Surgery,
Inc.; Ethicon, Inc.; Johnson & Johnson; and Prakash Ranka, M.D. See doc. 1‐2. Plaintiff
alleged all Defendants were liable for Plaintiff’s injuries arising from the implantation of
a surgical mesh product intended for treatment of medical conditions of the female
pelvis. Plaintiff sued Ethicon, Inc., Ethicon Endo‐Surgery, Inc., and Johnson & Johnson
(collectively, “Ethicon Defendants”1) as the manufacturers and sellers of the mesh.
Ethicon, Inc. is a subsidiary of Johnson & Johnson, and Ethicon Endo‐Surgery, Inc. is a subsidiary of
Ethicon, Inc. Doc. 3 at 2–3.
Plaintiff sued Defendant Ranka as the doctor who recommended the mesh to Plaintiff
and surgically implanted it. See generally id.
On February 22, 2018, Defendant Ethicon, Inc. removed the case to this Court on
the basis of diversity jurisdiction. Doc. 1. On March 5, 2018, the case was transferred by
order of the United States Judicial Panel on Multidistrict Litigation to the Southern
District of West Virginia, for resolution of common questions of fact with similar cases
filed against the Ethicon Defendants. Doc. 8. On May 24, 2019, the case was remanded
to this Court, the Ethicon Defendants having been dismissed, for resolution of the
claims against Defendant Ranka (hereinafter, “Defendant”). Doc. 10. On October 29,
2019, Plaintiff filed an amended complaint alleging medical negligence by Defendant in
the implantation of the mesh. Doc. 26.
Federal Rule of Civil Procedure 26(b) outlines the general legal standard for
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any partyʹs claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1) (2015). In order to be discoverable, therefore, material must be
both relevant and proportional to the needs of the case. Information “need not be
admissible in evidence to be discoverable.” Id. However, “Rule 26 vests the trial judge
with broad discretion to tailor discovery narrowly.” Murphy v. Deloitte & Touche Group
Ins. Plan, 619 F.3d 1151, 1163 (10th Cir. 2010) (quoting Crawford‐El v. Britton, 523 U.S.
574, 598 (1998)).
Under Federal Rule of Evidence 501, claims of privilege are governed by state
law in diversity cases. See Frontier Refining, Inc. v. Gorman‐Rupp Co., 136 F.3d 695, 699
(10th Cir. 1998). In New Mexico, attorney‐client privilege is governed by court rule.
N.M. R. Ann. 11‐503; Santa Fe Pac. Gold Corp. v. United Nuclear Corp., 175 P.3d 309, 315
(N.M. Ct. App. 2007). The elements of the privilege are “(1) a communication (2) made
in confidence (3) between privileged persons (4) for the purpose of facilitating the
attorney’s rendition of professional legal services to the client.” Santa Fe Pac. Gold, 175
P.3d at 315. A communication is “between privileged persons” when it is between the
client and the client’s lawyer or representative. N.M. R. Ann. 11‐503(B)(1). Attorney‐
client privilege may be waived if the holder of the privilege voluntarily discloses the
communication or consents to disclosure to a person not covered by the privilege. Santa
Fe Pac. Gold, 175 P.3d at 320; N.M. R. Ann. 11‐511.
Distinct from attorney‐client privilege is the work‐product doctrine, which is
governed by Federal Rule of Civil Procedure 26(b)(3). Frontier Refining, 136 F.3d at 702
n.10 (citation omitted). “Ordinarily, a party may not discover documents and tangible
things that are prepared in anticipation of litigation or for trial by or for another party
or its representative (including the other party’s attorney, consultant, surety,
indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). However, such materials
may be discovered if “the party shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship, obtain their substantial
equivalent by other means.” Id. Like attorney‐client privilege, work‐product protection
may be waived if the party claiming the protection voluntarily discloses the work
product to a party not covered by the doctrine. United States v. Ary, 518 F.3d 775, 783
(10th Cir. 2008) (citation omitted).
Federal Rule of Evidence 408 prohibits admission of evidence of settlement
offers, settlement agreements, and statements made during settlement negotiations.
Fed. R. Evid. 408(a); see United States v. Bailey, 327 F.3d 1131, 1144 (10th Cir. 2003).
Specifically, such evidence is not admissible “to prove or disprove the validity or
amount of a disputed claim or to impeach by a prior inconsistent statement or a
contradiction.” Fed. R. Evid. 408(a). Such evidence is, however, admissible for
“another purpose, such as proving a witness’s bias or prejudice, negating a contention
of undue delay, or proving an effort to obstruct a criminal investigation or
prosecution.” Fed. R. Evid. 408(b).
Defendant asks this Court to compel Plaintiff to respond to his Request for
Production No. 5, which seeks
all documentation and correspondence between you, your
attorney’s [sic] and/or agents and any entity, including
insurance companies, concerning any settlement agreements
entered into by you regarding the use and insertion of the
pelvic mesh which is the subject of this lawsuit, including
but not limited to any correspondence with agents or
representatives of [Ethicon Defendants]. This request
including [sic] but is not limited to every policy, settlement
agreement, email, and demand letter, letter to or from any
insurance company and/or [Ethicon Defendants], and any
other communication with any insurance company and/or
[Ethicon Defendants], whether electronically stored or not.
Doc. 32‐1 at 1–2. Plaintiff objects to this request on the ground that Defendant seeks
“confidential settlement communications protected by the Federal Rules of Evidence
and attorney/client privileged documents.” Id. at 2. In her response to Defendant’s
Motion, Plaintiff also indicates that the material sought is subject to work‐product
protection. Doc. 33 at 6.
As the Court understands Defendant’s request, the only documents that
Defendant seeks are communications between Plaintiff (and her attorney and agents)
and the Ethicon Defendants (and their representatives, agents, and insurers).
Communications between a party’s attorney and opposing parties are not protected by
either attorney/client privilege or work‐product protection. Therefore, the Court agrees
with Defendant that neither doctrine protects Plaintiff from disclosing the requested
The only question, then, is whether the protection afforded to settlement
communications by Federal Rule of Evidence 408 supports Plaintiff’s objection. Because
Rule 408 is a rule of admissibility and not discoverability, it does not prevent a party
from discovering evidence relating to settlement offers or statements made during
settlement negotiations. Servants of Paraclete, Inc. v. Great Am. Ins. Co., 866 F. Supp. 1560,
1576 (D.N.M. 1994). On the other hand, Rule 408 embodies a public policy favoring
out‐of‐court settlement of disputes, in which confidentiality is necessary to promote the
free and frank exchange of information and encourage parties to make concessions. Id.;
E.E.O.C. v. Gear Petroleum, Inc., 948 F.2d 1542, 1545–46 (10th Cir. 1991); Clark v. Stapleton
Corp., 957 F.2d 745, 746 (10th Cir. 1992). The Advisory Committee on the Federal Rules
of Evidence has expressed two rationales for excluding settlement communications:
(1) The evidence is irrelevant, since the offer may be
motivated by a desire for peace rather than from any
concession of weakness of position. The validity of this
position will vary as the amount of the offer varies in
relation to the size of the claim and may also be influenced
by other circumstances. (2) [A] more consistently impressive
ground is promotion of the public policy favoring the
compromise and settlement of disputes.
Fed. R. Evid. 408 advisory committee’s note to proposed rule.
In light of these policy considerations, some courts have imposed a heightened
standard for discovery of confidential settlement communications. These courts have
held that the party seeking discovery must demonstrate that (1) the party has a special
need for the materials; (2) unfairness would result from a lack of discovery of the
materials; and (3) the party’s need for the evidence outweighs the interest in
maintaining confidentiality. United States ex rel. Strauser v. Stephen L. Lafrance Holdings,
Inc., 2019 WL 6012850, at *2 (N.D. Okla. Nov. 14, 2019); In re Teligent, Inc., 640 F.3d 53, 58
(2d Cir. 2011). This Court need not decide whether to apply this heightened standard,
however, because Defendant has failed to demonstrate that the communications are
relevant to his defense.
Defendant contends that the settlement communications are necessary to
ascertain the “theories of liability on which Plaintiff recovered against the Ethicon
Defendants and [their] insurers.” Doc. 32 at 2–3. Defendant speculates that a product
defect was “the most likely avenue for Plaintiff’s recovery” and therefore the
information is relevant to the issue of comparative fault. Id. at 3. Defendant does not
assert that he requires the settlement communications in order to ascertain any
underlying facts regarding defects in the mesh. Thus, Defendant’s sole reason for
discovering these communications is to use them as evidence of liability, which Rule
In elaborating on his request, Defendant speculates “that Plaintiff is attempting
to hide provisions, admissions, and acknowledgements embodied in the requested
documentation which are adverse to Plaintiff’s position in the current case.” Id. at 6.
This justification directly implicates the first of the Advisory Committee’s concerns
about settlement communications. A party may take a position for the purpose of
reaching a settlement without intending it as a concession. Thus, any “admissions”
elicited for purposes of settlement are unlikely to shed light on the proper allocation of
liability between Defendant and the Ethicon Defendants.
Defendant also argues that allowing Plaintiff “to recover under the theory that
the TVT mesh was defective, and then proceed to make an inapposite argument in the
current matter, while withholding the underlying correspondence, would frustrate the
point of the adversarial system, be inequitable to defendants, and amount to a windfall
for Plaintiff.” Id. at 6. Assuming arguendo that the settlement communications contain
statements that are contrary to Plaintiff’s position against Defendant, the only relevance
that the Court can see in such statements is that they provide a basis to impeach
Plaintiff’s credibility by prior inconsistent statement or contradiction. Rule 408
expressly prohibits this.
The potential for a “windfall” is also irrelevant to Defendant’s defense. Any
defendant who chooses to settle a case runs the risk of paying more than his fair share
of liability. See Wilson v. Galt, 668 P.2d 1104, 1109 (N.M. Ct. App. 1983). Relatedly,
“there is no right to reduction of a jury award based on out‐of‐court settlements when
the case is tried on a theory of comparative fault.” Atler v. Murphy Enters., Inc., 104 P.3d
1092, 1100 (N.M. Ct. App. 2004) (citations omitted). Rule 408 prohibits evidence of the
amount of a settlement offer for the same reason.
In summary, Defendant has failed to carry his burden of proving that the
requested settlement communications are relevant to his defense. To be clear, the Court
does not intend by this Order to prevent Defendant from ascertaining relevant facts
concerning any defects in the mesh. However, the Court believes, based on the policy
considerations embodied in Rule 408, that the settlement communications sought are an
inappropriate means of obtaining this evidence.
Finally, the Court denies both parties’ requests for further relief based on their
grievances about the other party’s briefing of this matter. See doc. 33 at 6, doc. 35 at 4.
The relevance of Rule 408 to matters of discoverability is nuanced and fact‐specific.
Each party’s position was substantially justified.
For the reasons stated above, Defendant’s Motion to Compel Complete
Discovery Responses (doc. 32) is DENIED.
IT IS SO ORDERED.
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
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