Eisenberg et al v. Sorin Group Deutschland GMBH et al

Filing 46

MEMORANDUM OPINION AND ORDER IN SUPPORT OF PROTECTIVE ORDER 44 . Signed by U.S. District Judge Lawrence L. Piersol on 8/2/17. (DJP)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

Verk

SOUTHERN DIVISION
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DUANE EISENBERG and

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JANNA EISENBERG,individually
and as husband and wife,

CIV 16-4175

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Plaintiffs,

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MEMORANDUM OPINION IN SUPPORT

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OF PROTECTIVE ORDER

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vs.

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SORIN GROUP DEUTSCHLAND GMBH,*
and SORIN GROUP USA,INC.,
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Defendants.

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FACTUAL BACKGROUND

The following factual allegations are contained in Plaintiffs' Complaint. Doc. 1.
In June of 2015, Plaintiff Duane Eisenberg underwent aortic valve replacement surgery at
Sanford Medical Center in Sioux Falls, South Dakota. /J. at ^ 38. In the months following his

surgery, Mr. Eisenberg's health steadily deteriorated and in November of 2016, he was
diagnosed with mycobacterium chimaera(M chimaera). Id. at

39-41. In December of 2016,

Plaintiffs filed suit against Defendants alleging Mr. Eisenberg was exposed to M. chimaera

during surgery as a result of the use of Defendants device, the Sorin 3T Heater-Cooler (the "3T
Device"). M at Tflf 49-93.
PROCEDURAL BACKGROUND

On June 22, 2017, Defendants filed a Motion for Entry of a Protective Order and

Plaintiffs responded. Doc. 40-41. The parties agreed as to the contents of the proposed
protective order, with the exception of Paragraphs 2 and 3, which concerned the scope of access
to and use of protected confidential information. Defendants' proposed order sought to limit
dissernination of confidential information to this case and any other cases where Plaintiffs'

counsel is counsel of record.' Doc. 40; 43. Conversely, Plaintiffs' proposed order sought to
'The disputed portions ofParagraph 2 and 3 ofDefendant's proposed order read as follows;
2.

Limitations on Use.

Protected Materials and their contents, as well as copies,

summaries, notes, memoranda and computer databases relating thereto, shall be and remain

expand the protective order to allow counsel for victims to share produced documents and
information.^ Doc. 41.
confidential, and shall not be disclosed in any fashion, nor be used for any purpose other than the

analysis and preparation for trial of this action, or for the analysis and preparation for trial of
another lawsuit where Cadwell Sanford Deibert & Garry LLP is or will be counsel of record and a

lawsuit has been served properly, is filed within the United States of America, involves the 3T

device, and where LivaNova Deutschland GmbH and/or Sorin Group USA, Inc. are named
defendants. To the extent Protected Materials produced in the captioned action are used in another

properly filed and served lawsuit involving the 3T device (where LivaNova Deutschland GmbH
and/or Sorin Group USA,Inc. are named defendants and Cadwell Sanford Deibert & Garry LLP is
a counsel of record plaintiffs counsel shall identify to Defendants' counsel the other lawsuit by

caption (including parties, court, and docket number). No other distlpsure or use shall be made,
except with the prior written consent of the party or other person originally designating a
document as Protected Material or as hereinafter provided under this Order. Any other use is
prohibited.

3.

Access to Protected Material. In this lawsuit or in another lawsuit where Cadwell

Sanford Deibert & Garry LLP is a counsel of record that involves the 3T device, and where
LivaNova Deutschland GmbH and/or Sorin Group USA, Inc. are named defendants, protected

Material may be disclosed to the parties; to the counsel of record for the parties who are actively
engaged in the conduct ofthe litigation; to the partners, associates, secretaries, paralegal assistants,
and employees of such an attorney to the extent reasonably necessary to render professional
services in the litigation; to persons with prior knowledge of the documents or the confidential
information contained therein, and their agents; and to court officials involved in the litigation

(including court reporters, persons operating video recording equipment at depositions, and any
special master appointed by the Court). Subject to the provisions of subparagraph 3(d), such
documents may also be disclosed:
Doc. 40-1.

^ Paragraphs 2 and 3 ofPlaintiffs' proposed order read:
2.

Limitations on Use.

Protected Materials and their contents, as well as copies,

summaries, notes, memoranda and computer databases relating thereto, shall be' and remain
confidential, and shall not be disclosed in any fashion, nor be used for any purpose other than the

analysis and preparation for trial of this action, or for the analysis and preparation for trial of
another lawsuit served properly, filed within the United States of America,involving alleged NTM
infection or exposure by the 3T device, and where LivaNova Deutschland GmbH and/or Sorin
Group USA, Inc. are named defendants; provided that a protective order for confidentiality is
entered in such lawsuit or receiving counsel executes the acknowledgment form appended to this
Order(a "Related Action"). To the extent Protected materials produced in this action are used in a
Related Action, Plaintiffs' counsel shall identify to Defendants' counsel the Related Action by

caption (including parties, court, and docket number). No other disclosure or use shall be made,
except with the prior written consent of the party or other person originally designating a
document as Protected Material, or as hereinafter provided under this order. Any other use is
prohibited.

3.

Access to Protected Material. In this lawsuit or in another Related Action, protected

Material may be disclosed to the parties; to the counsel of record for the parties who are actively
engaged in the conduct ofthe litigation; to the partners, associates, secretaries, paralegal assistants,

and employees of such an attorney to the extent reasonably necessary to render professional
services in the litigation; to persons with prior knowledge of the documents or the confidential
information contained therein, and their agents; and to court officials involved in the litigation

(including court reporters, persons operating video recording equipment at depositions, and any

On July 7, 2017, after consideration of the two proposed orders, the Court entered
Plaintiffs' proposed protective order. Doc. 44.
DISCUSSION

Rule 26(c) of the Federal Rules of Civil Procedure governs the granting of a protective
order and requires that "good cause" be shown for a protective order to he issued. Fed. R. CiV.
P. 26(e); Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212(8th Cir. 1973), Pansy v.
Borough ofStroudshurg, 23 F.3d 772, 786 (3d Cir. 1994)(citations omitted)(finding that "it is
well-established that a party wishing to obtain an order of protection over discovery materials
must demonstrate that 'good cause' exists for the order of protection."). Federal courts use a

balancing test in determining whether good cause exists for a protective order—balancing the
requesting party's need for information against the injury that may result if uncontrolled
disclosure is compelled. Pansy, 23 F.3d at 787 (citing Arthur R. Miller, Confidentiality,
Protective Orders, and Public Access to the Courts, 105 HarV.L. Rev. 427, 433-35(1991)).

Courts consider a variety of factors to determine if a protective order is appropriate. Id.
at 787-88. These factors include:

1. Whether disclosure will violate privacy interests;

2. Whether the information is being sought for a legitimate purpose or for an
improper pqrpose;
3. Whether disclosure ofthe information will cause a party embarrassment;

4. Whether confidentiality is being sought over information important to public
health and safety;

5. Whether the sharing of information among litigants would promote fairness

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and efficiency;

6. Whether a party benefitting from the order is a public entity or official;
7. Whether the case involves issues important to the public.

Id. The above-listed factors "are unavoidably vague" in order to allow district courts the

flexibility to properly consider the eireumstanees of each case. Id. at 789; Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36(1984)(finding that "Rule 26(c) confers broad discretion on the trial
court to decide when a protective order is appropriate and what degree of protection is
required.").

special master appointed by the Court). Subject to the provisions of subparagraph 3(d), such
documents may also be disclosed:
Doc. 41-1.

Here, the Court entered Plaintiffs' proposed protective order pursuant to factors 1, 5, and
7.

s

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The disclosures do not violate Defendants'privacy interests

Plaintiffs' proposed order is sufficiently tailored to allow Only counsel in other cases

against Defendants to have access to protected materials. Contrary to defense counsel's
argument that "[n]othing would prevent counsel (Or parties) in non-South Dakota cases fiom
sharing the discovery documents publicly[,]" doc. 40 at 8-9, the protective order adequately
restricts access to only those individuals associated with a "Related Action" and also includes a
"Written Understanding" form that counsel and/or parties in related actions execute prior to

receiving protected materials. See Doc. 44

2-3; Doc. 44-1 (Exhibit A). These inclusions

sufficiently protect Defendants'privacy interests.

The sharing ofinformation among litigants will promotefairness and efTiciency
Besides the present action, fifteen other suits remain pending against Defendants. On

April 5, 2017, the Multi-District Panel denied a motion for centralization in the District of South
Carolina finding that "Section 1407 centralization would provide little or no benefit" as "any

overlapping pretrial proceedings have been and can continue to be handled through information
coordination." In re Sorin 3THeater-Cooler Sys. Prod. Liab. Litig., No. MDL 2772, 2017 WL

1282908, at *1 (U.S. Jud. Pan. Mult. Lit. Apr. 5, 2017). To this effect, the Panel explained that
[The] ten actions [in South Carolina] were brought bv iust two groups of
plaintiffs' cmmsel [][and][o]fthe remaining six actions, four were brought bv the
same plaintiffs' counsel, and the parties to those actions already are working
successfully to minimize overlapping pretrial proceedings by, for example,
sharing discovery produced in multiple actions.

Id.(emphasis added). Therefore, other than Plaintiffs' counsel in the present case, only four other
attorneys and/or law firms are currently associated with the actions against Defendants, and
according to the Panel, most are already successfully sharing discovery information.
Additionally, all of the actions currently pending against Defendants involve the alleged
mechanism of infection and design defect of the 3T Device. Thus, information sought by

^ Southern District of Iowa(2 cases); Western District of North Carolina (1 case); Middle District of Pennsylvania

(1 case); District of South Carolina (10 cases); Western District of Texas (1 ease). Doc. 40-2 (Exhibit B—
Schedule A). Plaintiffs are not a party in any other case, and Plaintiffs' counsel, Cadwell, Sanford, Deibert & Garry,
LLP, is not counsel in any other case against Defendants.

counsel and/or parties in eaeh of the related actions, or future actions, will be similar and relevant
in each ease.

The case involves issues important to the public

Cases involving serious issues eoneeming human health are issues particularly important
to the public. While the Court, in issuing Plaintiffs' protective order, makes no judgment as to

the truth or falsify of Plaintiffs' alleged claims, it notes the serious health implications involved
in this lawsuit, and the fifteen other lawsuits pending across the nation.
CONCLUSION

Defendants' arguments that its protected materials will he "flfcely used" with counsel,

parties, and/or the public is unfounded based on the provisions of the protective order, the
Court's interests in fostering fairness and effieieney in this ease and other related actions, and the
serious public health implications. Similar to the findings of the Panel, the Court too finds that
the issuance of Plaintiffs' protective order will work to promote fairness and efficiency by
"minimiz[ing] overlapping pretrial proceedings by... sharing discovery...." Id.

Dated this ^ day of August,2017.
BY THE COURT:

9i(lUMucOu
^wrenee L. Piersol
United States District Judge
ATTEST:

JOSEPH HAAS,CLERK

BY:

(SEAL)

DEPUTY