Santoyo v. Howmedica Osteonics Corp

Filing 30

ORDER granting in part and denying in part 19 Motion for Protective Order by Judge Benjamin H. Settle.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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5 MARGARET SANTOYO,
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Plaintiff,

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v.

8 HOWMEDICA OSTEONICS CORP.,
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CASE NO. C15-5264 BHS
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANT’S MOTION FOR
PROTECTIVE ORDER

Defendant.

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This matter comes before the Court on Defendant Howmedica Osteonics Corp.’s

12 (“HOC”) motion for protective order (Dkt. 19). The Court has considered the pleadings
13 filed in support of and in opposition to the motion and the remainder of the file and
14 hereby grants in part and denies in part the motion for the reasons stated herein.
I. PROCEDURAL HISTORY

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On April 9, 2015, Plaintiff Margaret Santoyo (“Santoyo”) filed a first amended

17 complaint against HOC in Pierce County Superior Court for the State of Washington.
18 Dkt. 1, Exh. A (“Comp.”). Santoyo asserts various torts stemming from a hip
19 replacement surgery. Id.
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On April 24, 2015, HOC removed the matter to this Court. Dkt. 1.

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On March 7, 2016, HOC filed a motion for a protective order. Dkt. 19. On March

22 1, 2016, Santoyo responded. Dkt. 27. On March 8, 2016, HOC replied. Dkt. 28.

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II. FACTUAL BACKGROUND
On January 8, 2007, Santoyo underwent a total hip replacement surgery. Comp., ¶

3 64. During the surgery, Dr. Steven Teeny inserted two of HOC’s products into Santoyo.
4 One of the components was an Accolade stem made of titanium, molybdenum, zinc and
5 iron (“TMZF stem”), and the other was the LFIT Anatomic V40 Femoral Head, which is
6 made out of cobalt and chromium. Id., ¶¶ 66–67.
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In July 2012, tests revealed that Santoyo’s hip components were loose, and Dr.

8 Teeny recommended surgery to replace the components. Id., ¶¶ 77–78. During the
9 revision surgery, Dr. Teeny recorded notes as follows:
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Immediately upon entering the joint, a thick squirt of green, thick
fluid was expressed seemingly under pressure. . . .This was immediately
sent to laboratory for a gram stain and evaluation with some synovial tissue
for evaluation which showed minimal chronic inflammation. No acute
inflammation. No signs of polymorphonuclear leukocytes. With that in
mind, the feeling was it had a clinical picture of an ALVAL type reaction. .
. . We did a partial capsulectomy and capsulotomy which allowed us to
express the femoral head. A bone tamp was used to remove it. It noted a
large amount of corrosion material at the trunnion and some deep, what
appeared to be corrosion materials deep inside the femoral head as well,
even after head was removed. . . . The cup itself was completely loose. . . .
More green purulent-like material was found behind the cup along with
quite a bit of necrotic bone so that a fair portion of the posterior wall, some
of the superior wall, some of the anterior wall and inferiorly all with
significant bone loss. There was necrotic bone almost in a layer around the
cup as well.

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Id., ¶ 80. Dr. Teeny removed the LFIT metal head component and replaced it with a
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ceramic component. Id., ¶ 81.
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Santoyo contends that her first hip components failed due to fretting and corrosion
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of the different types of metal in the components. This allegation is based on Dr. Teeny’s
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1 observations as well as the fact that HOC has recalled other hip replacement components
2 made of the same metals. Id., ¶¶ 31–36. Santoyo alleges that the “scientific community
3 has known for decades the combination of titanium and cobalt/chromium results in
4 significant fretting and corrosion when dissimilar metals are combined.” Id., ¶ 37.
5 Despite this knowledge, Santoyo contends that HOC continued to sell components made
6 of these metals, and, after experiencing significant failure rates, HOC recalled its
7 Rejuvenate and ABG II metal components. Id., ¶¶ 45–46. Santoyo further alleges that,
8 during the recall, HOC “redesigned the Accolade stem and abandoned the use of the
9 TMZF titanium and switched to a new titanium alloy.” Id., ¶ 51.
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Early in discovery, Santoyo sent HOC interrogatories and requests for production.

11 Through these requests, Santoyo seeks information relating to her old hip joint and
12 implanted head component, the revised head component, the TMZF stem component, and
13 HOC’s recalled components. See Dkt. 19, Exh. C. HOC asserted numerous objections to
14 the discovery requests, including the objections that the requests are overbroad and
15 unduly burdensome. Id. The parties met and conferred, but could not resolve the
16 dispute.
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III. DISCUSSION
“The court may, for good cause, issue an order to protect a party or person from

19 annoyance, embarrassment, oppression, or undue burden or expense . . . .” Fed. R. Civ.
20 P. 26(c)(1)(A). The order may forbid the discovery in its entirety or proscribe alternative
21 means of obtaining the requested material. Id. “The party opposing disclosure has the
22 burden of proving ‘good cause,’ which requires a showing that specific prejudice or harm

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1 will result ‘if the protective order is not granted.’” In re Catholic Archbishop of
2 Portland, Or., 661 F.3d 417, 424 (9th Cir. 2011) (quoting Foltz v. State Farm Mut. Auto
3 Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003)).
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With regard to the scope of discovery, the recently amended rule provides that

5 “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any
6 party’s claim or defense and proportional to the needs of the case . . . .” Fed. R. Civ. P.
7 26(b)(1). To determine the proportional needs of the case, the Court may consider:
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(1) the importance of the issues at stake in the action; (2) the amount
in controversy; (3) the parties' relative access to relevant information; (4)
the parties' resources; (5) the importance of the discovery in resolving the
issues; and (6) whether the burden or expense of the proposed discovery
outweighs its likely benefit.

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In this case, the parties’ disputes raise issues with relevancy and proportionality.

13 With regard to relevance, HOC attempts to limit Santoyo’s claims to the components that
14 were replaced in Santoyo’s hip. Specifically, HOC requests that the Court “narrow the
15 scope of Plaintiff’s discovery to the LFIT femoral head, the Trident acetabular cup, and
16 the Trident polyethylene insert.” Dkt. 19 at 12. While the relevance of these components
17 is obvious, the Court likewise finds that discovery relating to the specific stem that was
18 implanted into Santoyo is also relevant. Santoyo argues that the “TMZF stem still had a
19 direct causal relationship with Plaintiff’s injury and is an appropriate subject for
20 discovery” because “titanium in the TMZF stem and chromium/cobalt in the LFIT head,
21 created the corrosion problem that caused Plaintiff injury.” Dkt. 27 at 6. At this point,
22 Santoyo has presented a plausible metal-on-metal theory for the system failure, and HOC

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1 has failed to show good cause to prevent Santoyo from obtaining discovery on every
2 component that was placed inside her body during this hip replacement surgery.
3 Therefore, the Court denies HOC’s motion with regard to the TMZF stem.
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On the other hand, the Court finds that, at this time, Santoyo has only shown

5 minimal relevance of the recalled components. In fact, Santoyo appears to
6 misunderstand the nature of the recalled components in alleging that “injuries have also
7 occurred when the TMZF stem was used in the now-recalled cobalt/chromium
8 Rejuvenate and ABG-II [products].” Dkt. 27 at 7. HOC explains that Rejuvenate and
9 ABG-II are also stems, which, if used in conjunction with the TMZF stem, would be
10 “like nailing two nails into the same hole . . . .” Dkt. 28 at 5. While the Court declines to
11 resolve factual disputes at this juncture, it is sufficient to conclude that HOC has shown
12 good cause to prevent Santoyo’s discovery requests based on the possible
13 misunderstanding of the components in question. Therefore, the Court concludes that the
14 relevance of the recalled components is minimal, if there is any relevance at all.
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With regard to proportionality, Santoyo does not appear to dispute that she is

16 requesting thousands of pages of documents. Dkt. 27 at 10. The parties, however, do
17 dispute the resources HOC would be required to expend to honor Santoyo’s requests.
18 HOC “estimates that [Santoyo’s requests] would require it to produce between
19 approximately 750,000 and 1 million pages of discovery at the staggering cost of over $3
20 million dollars.” Dkt. 28 at 2. These estimates are based on HOC’s attorney’s
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1 experience with similar prior litigation. Id. at 29–31. 1 While his experience is relevant,
2 greater detail should be provided in the future. Santoyo contends that “many of these
3 documents may already have been compiled in other litigation and their production may
4 merely take a few computer keystrokes to produce.” Dkt. 27 at 10. This assertion is
5 supported by the fact that the Rejuvenate and ABG II components are the subject of a
6 multi-district litigation. Id. at 11. In light of the slight relevance at this point, the amount
7 in controversy2 and the vast amount of discovery sought, the Court concludes that HOC
8 has shown good cause to preclude discovery as to the Rejuvenate and ABG II
9 components at this time. Therefore, the Court grants HOC’s motion on these issues.
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Going forward, the parties should strive to resolve these disputes without Court

11 intervention. If Santoyo obtains evidence or opinion testimony establishing greater
12 relevance of the recalled components to her injury, the parties are directed to meet and
13 confer regarding the parameters of additional discovery. In the event that Court
14 intervention becomes necessary, the Court requests actual facts as to the number of
15 documents, whether they have already been produced, and, if possible, the amount of
16 work required to review and produce such documents.
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Although this evidence was improperly submitted with the reply brief, Santoyo is not
20 prejudice by the Court accepting the assertions for comparative purposes only. Provenz v. Miller,
102 F.3d 1478, 1483 (9th Cir. 1996).

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The record is lacking detail as to what Defendant’s exposure is to damages if liability is
found. From the information that is available, that amount is likely less than the anticipated cost,
22 as estimated by the Defendant, to produce the requested discovery.

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IV. ORDER
Therefore, it is hereby ORDERED that HOC’s motion for protective order (Dkt.

3 19) is GRANTED in part and DENIED in part as stated herein.
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Dated this 5th day of May, 2016.

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BENJAMIN H. SETTLE
United States District Judge

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