In Re: Zimmer M/L Taper Hip Prosthesis or M/L Taper Hip Prosthesis with Kinectiv Technology and Versys Femoral Head Products Liability Litigation

Filing 120

ORDER NO. 47 denying 114 Motion for Discovery. Defendant Zimmer's motion for a Protective Order is DENIED. The Clerk of Court is directed to close the motion at Docket 286. SO ORDERED. (Signed by Judge Paul A. Crotty on 8/7/2020) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE: ZIMMER M/L TAPER HIP
:
PROSTHESIS OR M/L TAPER
:
HIP PROSTHESIS WITH KINECTIV
:
TECHNOLOGY AND
:
VERSYS FEMORAL HEAD PRODUCTS
:
LIABILITY LITIGATION
:
:
This Document Relates to All Cases
:
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MDL NO. 2859
18-MD-2859 (PAC)
18-MC-2859 (PAC)
ORDER NO. 47

HONORABLE PAUL A. CROTTY, United States District Judge:
The Court held a telephonic Conference in this multi-district litigation (“MDL”) with the
Plaintiffs’ Executive Committee (“PEC”) and Defendant Zimmer (“Zimmer”) on August 5,
2020. This Order records the disposition at that Conference of several items raised by the Parties
in their joint pre-Conference letter dated July 31, 2020. This Order further rules on a motion for
a Protective Order filed by Zimmer.
DISCUSSION
I.

July 31 Letter
The Parties raised several outstanding matters in their July 31 joint pre-Conference letter;

the Court heard argument at the August 5 Conference. Dkt. 287, at 1–4; Tr., Aug. 5 Conf., at
4:25–14:6. On the matter of the Court entering an Order requested by the PEC to maintain the
confidentiality of deposition exhibits prior to their introduction, Dkt. 287, at 1, Zimmer agrees to
the request and the Parties are ordered to jointly submit a draft order for the Court’s approval.
Tr., Aug. 5 Conf., at 5:3–17. The Parties further agreed to resolve their differences and submit a
proposed amended scheduling order. Dkt. 287, at 2; Tr., Aug. 5 Conf., at 5:20–7:7. The Parties
raised three disputes related to discovery. Dkt. 287, at 3–4. The Parties said that the dispute
regarding SharePoint did not require judicial intervention, and that they would meet and confer

on the separate issue of what the PEC believes to be certain underreported adverse event and
complaint data. Id. at 3–4; Tr., Aug. 5 Conf., at 7:22–13:21. As to the argument over production
related to communications between Maine Medical Center and personnel at local Zimmer
distributor Zimmer Biomet Northeast, Dkt. 287, at 3, the PEC will file its motion to compel on
Monday, August 10, and Zimmer will respond by August 17. Tr., Aug. 5 Conf., at 8:18–11:21.
II.

Zimmer’s Motion for a Protective Order
Lastly, this Order resolves a dispute regarding Zimmer’s request for a protective order

precluding the depositions of Dr. Richard Berger (“Berger”) and Dr. Paul Duwelius
(“Duwelius”) until those witnesses provide expert reports in accordance with Federal Rule of
Civil Procedure 26(a)(2)(B). Dkt. 286, at 1–2. The PEC resists this request. Dkt. 288, at 1. In
addition to their briefs, the Parties argued their positions at the August 5 telephonic Conference.
Tr., Aug. 5 Conf., at 14:7–23:22. Zimmer’s motion is DENIED.
Berger and Duwelius were “design surgeons” who were among the twenty-one
orthopedic surgeons who consulted with Zimmer during the development of the M/L Taper with
Kinectiv Technology, one of the devices at issue in this MDL. Dkt. 286, at 1; Tr., Aug. 5 Conf.,
at 14:15–24. According to Zimmer, the PEC wants to depose the two doctors “to elicit what
would be expert testimony . . . regarding their opinions of the merits of the Kinectiv, potential
criticisms of the device, and any alleged issues they experienced with the device when used with
patients outside the MDL.” Dkt. 286, at 1.
As an initial matter, it is not clear Zimmer has standing to challenge these subpoenas,
which are issued to non-party witnesses, and Zimmer does not even mount an argument that it
does have standing. See United States v. Tucker, 249 F.R.D. 58, 60 n. 3 (S.D.N.Y. 2008) (“A
party generally lacks standing to challenge a subpoena issued to a non-party absent a claim of

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privilege or a proprietary interest in the subpoenaed matter.”).
On the merits, the PEC is right that Zimmer here presents what is in fact an evidentiary
dispute as though it is a discovery dispute. Dkt. 288, at 2–6. The cases Zimmer relies on all
speak to the admissibility of testimony at trial. In re DePuy Orthopaedics, Inc. Pinnacle Hip
Implant Prods. Liab. Litig., 3:11-MD-2244-K, 2016 WL 6268094, at *1 (N.D. Tex. Mar. 10,
2016) (“Before the Court are four motions filed by Defendants related to trial testimony from
non-retained testifying experts.”) (emphasis added); In re World Trade Center Lower Manhattan
Disaster Site Litig., No. 21-mc-102, 2014 WL 5757713, at *3 (S.D.N.Y. Nov. 5, 2014)
(“Plaintiffs first argue that the physicians should be permitted to testify at trial as fact witnesses .
. . .) (emphasis added). But from their papers it appears the PEC wants to depose Berger and
Duwelius on their first-hand knowledge designing the Kinectiv components and their personal
experiences using or not using those same components in their practices. Dkt. 288, at 6. The
PEC says it wants to “depose Drs. Berger and Duwelius based on their first-hand knowledge
about the Kinectiv device” and that “[m]uch of their testimony will be based in fact as a result of
these doctors’ own experiences as members of the design team and implanting surgeons who
used the products for many years.” Id. This would appear on the face of it to be non-expert
testimony of which the witnesses have “personal knowledge.” Fed. R. Evid. 602. If Zimmer
after the depositions believes the testimony is in truth expert opinion in disguise, or otherwise
fails on admissibility, the proper remedy is to bring a motion in limine before trial to exclude or
limit Berger and Duwelius’ testimony. If at that point Berger or Duwelius’ testimony has
impermissibly veered into expert territory, it may then be necessary for the witnesses to either
fulfill the requirements of Federal Rule of Civil Procedure 26, or perhaps face preclusion. But
that is for another day.

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CONCLUSION
Defendant Zimmer’s motion for a Protective Order is DENIED. The Clerk of Court is
directed to close the motion at Docket 286.

Dated: New York, New York
August 7, 2020

SO ORDERED

________________________
PAUL A. CROTTY
United States District Judge

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