Shipley v. Forest Laboratories
Filing
45
MEMORANDUM DECISION granting 36 Motion to Quash subpoenas duces tecum. Signed by Magistrate Judge Dustin B. Pead on 7/18/14 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
ELAINE J. SHIPLEY, Individually, as
Personal Representative of the Estate of Kurt
Philip Shipley, Deceased, and as Next Friend
of Jordon John Shipley, Brynn Shipley, Jason
Kent Shipley, Jensen Kurt Shipley, minors,
Plaintiff,
v.
MEMORANDUM DECISION
Case No. 1:06-cv-00048-TC-DBP
District Judge Tena Campbell
Magistrate Judge Dustin B. Pead
FOREST LABORATORIES,
Defendant.
I.
INTRODUCTION
This wrongful death products liability matter was referred to the Court under 28 U.S.C. §
636(b)(1)(A). (Docket No. 19.) The Court now considers Plaintiff’s motion to quash subpoenas
duces tecum that Defendant served on nonparties. (Dkt. No. 36.) For the reasons set forth
below, the Court GRANTS the motion.
II.
PROCEDURAL HISTORY
In April 2004, Plaintiff’s husband committed suicide while under the influence of Lexapro,
an antidepressant medication that Defendant manufactured. (Dkt. No. 1 at 12.) In January 2006,
Plaintiff brought a Utah state court medical malpractice action against the medical practice,
physician, and nurse practitioner who prescribed Plaintiff’s husband the Lexapro. (Dkt. No. 38-
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1.) The state court action was entitled Shipley v. Julien. Plaintiff alleged that the Julien
defendants negligently breached their duty of care to Plaintiff’s husband, leading to his death.
(Id. at 3.)
In August 2010, Plaintiff and defendants in the Julien action came to a confidential
settlement agreement. (Dkt. No. 36 at 3.) On August 30, 2010, the Utah state court approved the
settlement and sealed the file in the Julien action. (Dkt. No. 36-4.)
In April 2006, Plaintiff brought the current action against Defendant in this federal district
court. (Dkt. No. 1.) Plaintiff alleges that Defendant is strictly liable for designing,
manufacturing, and marketing the defective product Lexapro, which Defendant failed to label
with adequate suicidality warnings. (Id. at 13.)
In contrast to the Julien action, which involved “medical negligence claims against healthcare providers,” the current federal action involves “products liability claims against a
pharmaceutical manufacturer . . . .” (Dkt. No. 43 at 6.)
III.
PLAINTIFF’S MOTION TO QUASH SUBPOENAS
On May 22, 2014, Defendant served a subpoena duces tecum on the law firm (Dewsnup
King & Olsen) that represented Plaintiff in the Julien action. Defendant also served two
subpoenas duces tecum on the law firm (Richards, Brandt, Miller & Nelson) that represented the
defendants in the Julien action. The subpoenas seek:
All documents evidencing settlement of the litigation captioned Elaine Shipley,
individually and as personal representative of heirs of Kurt Shipley v. Craig K.
Julien, M.D., et al., Case No. 06070028, filed in the Second Judicial District,
Davis County, Utah, including any executed settlement agreements, executed
release of claims, and probate court approval of same.
(Dkt. Nos. 36-1 to 36-3.)
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On June 9, 2014, Plaintiff filed this motion to quash Defendant’s subpoenas because they
seek confidential and irrelevant settlement information, and producing the information would
place an undue burden on the subpoenaed nonparties. (Dkt. No. 36.) The Court GRANTS
Plaintiff’s motion on relevance grounds. Therefore, the Court will not address Plaintiff’s
remaining arguments for quashing the subpoenas.
A. Whether Settlement Agreement is Relevant to Defendant’s Damages
Plaintiff moves to quash Defendant’s subpoenas because the settlement information from the
Julien action bears no relevance to the current federal action. (Dkt. No. 36 at 4-5.) See Fed. R.
Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense . . . .”). Plaintiff emphasizes that the Julien action and
this federal action “involve different claims against different parties based on different theories
of liability . . . .” (Dkt. No. 43 at 6.)
Defendant counters that Plaintiff’s “claims in Julien were based on the same events as the[]
claims” in the current federal action. (Dkt. No. 38 at 3.) Therefore, the Julien settlement is
relevant because “it may lead to information about damages that can be brought into evidence at
trial.” (Id.) (citing Tanner v. Johnston, 2:11-cv-00028-TS-DBP, 2013 WL 121158, at *4 (D.
Utah Jan. 8, 2013) (unpublished) (“[D]iscovery into negotiations can be based on the reasonable
belief that it may produce information on the question of damages that can be brought into
evidence independent of the settlement context.”)). More specifically, the “amount [the Julien
defendants] paid to settle the claims against them is relevant to [Defendant’s] share of Plaintiffs’
total damages . . . .” (Dkt. No. 38 at 4.)
Initially, the Court questions Defendant’s reliance on Tanner v. Johnston to support its
relevance argument. Tanner involved a single lawsuit where plaintiffs brought overlapping
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claims against two sets of defendants. Tanner, 2013 WL 121158, at *3. The defendants carried
joint and several liability on these overlapping claims. Id. As a result, this Court concluded that
portions of the settlement agreement between plaintiffs and the settling defendants relating to
those overlapping claims were relevant to the non-settling defendants to determine their liability.
Id. at *4.
Unlike Tanner, the present situation involves two lawsuits with different defendants,
different causes of action, and no joint or several liability. See Tanner, 2013 WL 121158, at *5
(“[T]he Court does not believe settlement information unrelated to [] overlapping claims is
relevant to the [non-settling] [d]efendants where it does not impact their potential liability or
damages.”).
Instead, Defendant in this federal action is liable only “for its proportionate share of []
Plaintiff’s damages . . . .” (Dkt. No. 36 at 5.) UTAH CODE ANN. § 78B-5-818(3) (“No defendant
is liable to any person seeking recovery for any amount in excess of the proportion of fault
attributed to that defendant . . . .”). Indeed, Defendant cannot obtain any contribution, credit, or
offset for its damages based on amounts paid in the Julien settlement. (Dkt. No. 36 at 5.) UTAH
CODE ANN. § 78B-5-820(2) (“A defendant is not entitled to contribution from any other
person.”).
Under these circumstances, the Court concludes that the Julien settlement agreement is not
obviously relevant to calculating Defendant’s damages. The Julien defendants presumably
settled Plaintiff’s damages for medical malpractice whereas here Plaintiff seeks damages from
Defendant for products liability. Moreover, as Plaintiff notes, “[w]hatever [] [P]laintiff and the
Julien defendants thought about [] [P]laintiff’s damages and the Julien defendants’ relative share
of fault is not evidence; it is just the opinion of two parties or their counsel, expressed in
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settlement negotiations.” (Dkt. No. 43 at 4.) As such, Defendant’s arguments about relevance
regarding its damages are too speculative to be sufficiently relevant at this time.
B. Whether Settlement Agreement is Relevant to Prove Witness Credibility and Bias
Defendant also argues that the prior settlement is relevant because the Julien defendants “will
be important witnesses in this case” and their settlement agreement “terms could have an impact
on [their] witness credibility and bias.” (Dkt. No. 38 at 3-4.) See Hydro Eng’g, Inc. v. Petter
Invs., Inc., 2:11-cv-00139-RJS-EJF, 2013 WL 6635163, at *3 (D. Utah Dec. 17, 2013)
(unpublished) (concluding that settlement affidavit drafts that settling defendant rejected were
relevant to assess settling defendant’s “potential bias, interest and credibility . . . .”); Tanner,
2013 WL 121158, at *5-6 (finding settlement agreement terms “related to [] overlapping claims”
against settling and non-settling defendants were relevant to establish settling defendants’
“witness credibility and bias . . . .”).
Plaintiff challenges Defendant’s arguments about credibility and bias. Plaintiff asserts that
the Julien defendants “were never adverse to” Defendant in this action, and “the settlement in
Julien did not give the Julien defendants any incentive to collude with [] [P]laintiff against”
Defendant. (Dkt. No. 43 at 5 n.14.)
The Court agrees with Plaintiff’s position. Without more information about the Julien
defendants’ credibility and bias issues, Defendant’s arguments on these issues are too speculative
to demonstrate relevance. See Digital Ally, Inc. v. Z3 Tech., LLC, No. 09-2292-KGS, 2012 WL
2366713, at *3 (D. Kan. June 21, 2012) (unpublished) (rejecting plaintiff’s request to see
settlement agreement between defendant and third-party to determine their witness credibility
because plaintiff failed to “show[] that [third-party] ha[d] a financial interest in the outcome of
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the litigation between [plaintiff] and [defendant] or how [plaintiff] would use the agreement to
impeach any witnesses.”).
At this point in time, the Court believes Defendant can sufficiently challenge any potential
credibility and bias issues “by asking” the Julien defendants if Plaintiff “previously made a claim
against [them] and whether the claim was resolved.” (Dkt. No. 43 at 5.)
IV.
ORDERS
For the reasons analyzed above, this Court GRANTS Plaintiff’s motion to quash the
subpoenas duces tecum that Defendant served on the law firms Dewsnup King & Olsen as well
as Richards, Brandt, Miller & Nelson. (Dkt. No. 36.)
Dated this 18th day of July, 2014.
By the Court:
Dustin B. Pead
United States Magistrate Judge
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