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 129

ORDER denying 126 Letter Motion to Compel. The PECs motion is DENIED. The Clerk of Court is directed to close the motion at Docket 300. (Signed by Judge Paul A. Crotty on 8/20/2020) (nb)

Case 1:18-mc-02859-PAC Document 129 Filed 08/20/20 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
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
:
---------------------------------------------------------------x

MDL NO. 2859
18-MD-2859 (PAC)
18-MC-2859 (PAC)
ORDER NO. 50

HONORABLE PAUL A. CROTTY, United States District Judge:
The Plaintiffs’ Executive Committee (“PEC”) moves to compel the defendant in this
multi-district litigation (“MDL”), Zimmer (“Defendant,” “Zimmer”), to produce
communications between surgeons at Maine Medical Center (“MMC”) and Zimmer’s local
distributor in Maine, Zimmer New England and Zimmer Biomet Northeast (collectively,
“ZNE”). Dkt. 300, at 1. The Parties first brought this discovery dispute to the Court’s attention
in a joint letter dated July 31, 2020 that set out their proposed agenda for a telephonic conference
that was held with the Court on August 5. Dkt. 287, at 3–4. The Parties presented their
arguments for the Court at that conference, Tr., Aug. 5 Conf., Dkt. 298, at 8:18–11:22, and
submitted letter briefs. Dkts. 300, 305.
The motion is DENIED.
DISCUSSION
To date, Zimmer has produced emails between two ZNE employees and MMC dating
from 2015 to 2017. Tr., Aug. 5 Conf., Dkt. 298, at 9:2–5. The PEC characterizes this
production as “a very limited set of emails that the sales representatives and the distributor’s
principal pulled from their email accounts,” and argues that “[i]t [is] clear based on the emails
that were produced in the larger MDL that additional communication was housed between the

Case 1:18-mc-02859-PAC Document 129 Filed 08/20/20 Page 2 of 3

distributor and the surgeons at [MMC] about the increased failure rate of the M/L Taper when
compared with Versys Femoral Head experienced at that facility.” Id. at 9:8–13.
The PEC points out that 51 of the 219 plaintiffs in this MDL were patients at MMC to
augment the relevance of the information sought. Dkt. 300, at 2. But as the Defendant notes,
“non-case specific written discovery and document production related to the products . . . closed
on December 20, 2019.” Order No. 31, Dkt. 177; Dkt. 305, at 2. It may well be that the material
the PEC seeks to compel would be of interest to MDL plaintiffs generally; but the Request for
Production (“RFP”) on which they seek to compel production is properly viewed as pertaining
only to Pride, the bellwether case in which it was propounded. The question left before the
Court, then, is whether the additional communications sought are “relevant to any party’s claim
or defense and proportional to the needs of” Pride, and not to the MDL plaintiffs generally. Fed.
R. Civ. P. 26(b)(1). Therefore, inasmuch as the PEC seeks to compel further communications in
response to RFP No. 9 (which was propounded in common discovery), that request can be
readily denied.
RFP No. 17, however, seeks the communications at issue within the context of the Pride
case alone. Dkt. 300, at 3. Zimmer contends that even viewed through this narrower lens, “the
communications sought have marginal, if any, relevance,” to the Pride plaintiff’s case; that “any
marginal relevance is outweighed by the burden of adding the number of additional custodians
for whom Plaintiffs seek communications;” and that “Zimmer has already gathered and produced
email communications during the relevant time period for individuals at Zimmer and [ZNE]
most likely to have had communications with Mr. Pride’s surgeon about his alleged injuries.”
Dkt. 305, at 1.

2

Case 1:18-mc-02859-PAC Document 129 Filed 08/20/20 Page 3 of 3

Zimmer is right that the PEC had its opportunity to pursue the communications it now
seeks to compel during common discovery. To order Zimmer to produce the documents in
question now, going back to 2009, when the Pride plaintiff underwent his revision surgery in
2016 stretches the meaning of relevance too far. Dkt. 300, at 3; Dkt. 305, at 4.
CONCLUSION
The PEC’s motion is DENIED. The Clerk of Court is directed to close the motion at
Docket 300.

Dated: New York, New York
August 20, 2020

SO ORDERED

________________________
PAUL A. CROTTY
United States District Judge

3