Hershberger et al v. Ethicon Endo-Surgery, Inc.
Filing
264
MEMORANDUM OPINION, ORDER AND RECOMMENDATIONS granting plaintiffs' 131 MOTION for Sanctions; recommending that the presiding District Judge admit into evidence testimony and exhibits concerning other similar incidents in which users of the staplers complained that the staplers cut tissue but did not staple it, and deny the defendants' 181 Motion in Limine No. 10; further recommending that the presiding District Judge admit into evidence testimony and exhibits concerning th e defendants' conduct during discovery with respect to other similar incidents; directing that, within one week of the entry of this Memorandum Opinion, Order and Recommendations, the defendants shall file an affidavit by a person with extens ive knowledge of the Siebel database and its metadata (not Kristi Geier), setting forth the following information regarding searches of the Siebel database concerning staplers, using the VOC code "would not staple," between 2/6/2009 and 6 /3/2011, and as more fully set forth herein; that within two weeks of entry of this Memorandum Opinion, Order and Recommendations, counsel for the plaintiffs will file an affidavit of his reasonable attorney's fees and costs associated with the Motion for Sanctions, the filing of discovery requests for other similar incidents after Request No. 16, and Mr. Gabaldon's two depositions, with sufficient detail that the Court will be able to assess whether the time spent and the expe nses incurred were appropriate for the task specified; defendants to file their response to the affidavit within two weeks after the affidavit is filed; plaintiffs' attorney may file a reply within one week after the response is filed; finding that there is insufficient evidence that Ms. Geier violated Rule 33 or that defense counsel violated Rule 26(g) or Rule 33 with respect to Peter McNally; this judicial officer is referred discovery disputes only and declines to address The Plaint iffs' Other Claims herein; and declines to proceed under either § 1927 or the inherent authority of the court, having determined that Rule 26(g) adequately addresses these matters; and as directed and set forth more fully herein. Signed by Magistrate Judge Mary E. Stanley on 8/12/2011. (cc: attys) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
SANDRA HERSHBERGER
and DAVID MITCHELL,
her husband,
Plaintiffs,
v.
Case No. 2:10-cv-000837
ETHICON ENDO-SURGERY, INC.,
an Ohio corporation, a subsidiary of
JOHNSON & JOHNSON, a New Jersey
corporation,
Defendants.
MEMORANDUM OPINION, ORDER AND RECOMMENDATIONS
This products liability case presents the issue of whether,
pursuant to Rule 26(g), Fed. R. Civ. P., sanctions should be
imposed on defendants which failed, in a timely manner, to produce
discovery material relating to other similar incidents involving
its product. The plaintiffs also raise other issues respecting the
defendants’ conduct.
The product in this case is a Proximate ILS
Curved Intraluminal Stapler (model CDH29) (“the stapler”), used in
a colosotomy reversal to fasten the descending colon to the rectum,
a
procedure
called
“anastomosis.”
The
plaintiffs’
complaint
alleges that the stapler “malfunctioned and failed to discharge any
staples, resulting in perforation of the colon and necessitating
further surgical and other medical treatment.” (Complaint, ECF No.
1-1, at 4.)
More specifically, the complaint asserts that the
stapler was not loaded with staples prior to distribution.
Pending
before
the
Court
is
the
plaintiffs’
Id.
Motion
for
Sanctions (ECF No. 131), supported by exhibits and a memorandum.
The defendants responded in opposition (ECF No. 212), and the
plaintiffs filed a reply (ECF No. 231). An evidentiary hearing was
conducted on July 28, 2011.
The Motion for Sanctions is granted.
Pertinent Facts
The proposed pretrial order (ECF NO. 192, at 16-30), sets
forth the parties’ respective recitations of the evidence.
On
February 6, 2009, Sandra Hershberger underwent surgery to reverse
a colostomy. The surgeons have testified that the stapler was used
properly but that it did not deploy any staples when fired.
Id. at
18-20. The stapler is a single-use device. The defendants contend
that the stapler was fired prematurely by the surgical resident and
that unformed staples can be seen on a CT scan.
Id. at 26-30.
The
stapler was given to the surgical charge nurse.
On February 19, 2009, a meeting was held at the hospital,
attended by the lead surgeon, the surgical charge nurse, the
defendants’
division
sales
manager,
Peter
McNally,
and
the
defendants’ sales representative, Cynthia Hutchings.
The stapler
was
during
examined
and
the
functioning
Hershberger’s surgery was discussed.
2
of
the
stapler
Ms.
Procedural History
This action was filed in the Circuit Court of Kanawha County,
West Virginia on April 16, 2010 (Notice of Removal, ECF No. 1, at
1).
Process was served through the Secretary of State’s Office on
May 25, 2010.
It was removed to this Court on June 17, 2010.
Rule
26(a)(1) disclosures were due no later than September 10, 2010
(Order and Notice, ECF NO. 4).
Discovery began in August, 2010 and
continued very actively through early June, 2011.
Discovery of Other Similar Incidents
In virtually any products liability case, there are two
significant questions: What happened to the plaintiff? Has this
happened to anybody else?
In pursuing the second question, the
plaintiffs served their First Set of Requests for Production of
Documents on August 24, 2010 (ECF No. 7), which included Request
No. 16, and received a response on October 21, 2010 (ECF No. 15):
REQUEST NO. 16: All lawsuits, warranty claims, field
reports, or other claims or reports with respect to the
Ethicon Stapler, or substantially similar products as
identified in your response to Interrogatory No. 9 of
Plaintiffs’ First Interrogatories to All Defendants,
whether generated by this Defendant’s quality control
personnel, the FDA, patients, physicians, salespersons,
distributors, employees of this Defendant, or other
persons, and which allege that the stapler had not been
loaded with staples at the time it was manufactured and
packaged.
RESPONSE: Objection. Ethicon objects to the relevancy of
other litigation. Additionally, this request as a whole
is vague and overly broad.
Additionally, the term
“substantially similar” is vague, broad, and subject to
different meanings. Notwithstanding said objections, and
after a reasonable investigation, there are no documents
3
responsive to this request.
(ECF No. 131-1, at 2.)
The response was signed by Robert H. Akers.
On November 17, 2010, the plaintiffs tried again with more
specific language, and served their Third Set of Requests for
Production of Documents (ECF No. 22), which included Request No.
1(a), and received a response on December 20, 2010 (ECF No. 35):
REQUEST NO. 1: To the extent not previously produced in
response to Plaintiffs’ First or Second Requests for
Production, produce the following items:
(a) All Product Inquiry Verification Reports
(PIVRs) which relate to an Ethicon Proximate
ILS Intraluminal Circular Stapler, Product
Number CDH29 which allege that a stapler
failed to fire due to a lack of staples.
* * *
RESPONSE: (a) Objection. This request is overly broad
and irrelevant as it is not limited in temporal or
geographic scope and does not pertain to the subject
stapler at issue in this case. This request also seeks
information beyond the scope of this litigation,
information protected by the attorney-client and work
product privilege, and is not reasonably calculated to
lead to the discovery of admissible evidence.
Additionally, there is no predicate that any such PIVR
would be substantially similar or admissible in this (or
any other case).
Notwithstanding these objections,
Ethicon will agree to produce other PIVRs from 2002 to
February 6, 2009, which emanate from the United States
and in which it was alleged that an Ethicon Proximate ILS
Intraluminal Circular Stapler, Product Number CDH29
“failed to fire” due to a lack of staples. Please see
the Product Inquiry Verification Report, attached as
Exhibit A. Please note that the PIVR Report produced in
response to this Request has been redacted to protect the
privacy interests of non-EES employers and information
protected by the attorney-client and work product
privilege has also been redacted.
(ECF No. 131-4, at 2-3.)
The defendants produced information
4
regarding one similar incident.
Again, the response was signed by
Mr. Akers.
On January 9, 2011, the plaintiffs’ attorney expressed his
dissatisfaction with the response via e-mail, complaining that it
was improper to limit the production to the years 2002-2009, and to
the United States.
(ECF No. 131-5.)
The Court has not been
provided with a response to this e-mail.
On January 29, 2011, the plaintiffs served their notice of
deposition (ECF No. 57) of Carlos Gabaldon, a customer quality
engineer for the defendants, located in the El Paso, TX/Juarez,
Mexico area.
During his deposition on February 23, 2011, Mr.
Gabaldon testified that, using a Siebel database, he had determined
that there were seven incidents in which it was reported that a
stapler was missing staples. On February 28, 2011, the plaintiffs’
attorney agreed not to file a motion to compel production of the
seven incidents while defense counsel tried to “work something
out.” (ECF No. 131-6.) On March 6, 2011, the plaintiff’s attorney
inquired again about the documents, id., and on March 9, 2011,
defense counsel produced them.
(ECF No. 131-7.)
On February 25, 2011, two days after Mr. Gabaldon’s first
deposition and before the defendants produced the records of the
seven incidents, the plaintiffs served their Tenth Set of Requests
for Production of Documents (ECF No. 67), which included Request
No. 2:
5
REQUEST NO. 2: To the extent not previously produced,
produce all “Verification Report - Product Issue”
documents and “Product Issue Analysis Reports” related to
any incident alleging that a CDH stapler was not loaded
with staples from January 6, 1999 to January 6, 2009.
(ECF No. 131-8, at 2.)
After some motion practice which is not
pertinent here, on April 26, 2011, the defendants were directed to
respond to the Tenth Set, and the plaintiffs were permitted to
serve their Ninth Set (which had not been previously served due to
a clerical error) (ECF Nos. 100, 101).
The Ninth Set included
Request No. 5:
REQUEST NO. 5: To the extent not previously produced,
produce all MedWatch filings, Siebel database entries
(including testing, correspondence, notes, memoranda,
product analyses, etc.), and other documentation which
contains an allegation that a CDH stapler was not loaded
with staples.
On May 24, 2011, the plaintiffs again deposed Carlos Gabaldon
about the other incidents disclosed on March 9, 2011 (ECF NO. 107).
On June 3, 2011, in response to the Ninth and Tenth Sets, the
defendants produced records of an additional 125 other incidents
dated between November 19, 2002 and January 26, 2009.
At the
hearing, it was learned that 44 of these incidents are similar to
the situation presented in this case, and 21 of the staplers were
examined by
Carlos
Gabaldon
after
they
were returned
to
the
defendants.1
1
The plaintiffs’ response in opposition to the defendants’
Motion in Limine No. 10 to Preclude Reference to Other Events and
Occurences Involving Ethicon Staplers (ECF No. 181), states that
there are 45 similar incidents, summarized at ECF No. 206-13,
6
Positions of the Parties
The plaintiffs contend that the defendants’ improper responses
and delayed disclosures, after dogged pursuit by the plaintiffs, is
part of a pattern of improper conduct by the defendants.
ECF No. 132, at 7.)
(Mem.,
They base their Motion for Sanctions on
Federal Rule of Civil Procedure 26(g), 28 U.S.C. § 1927, and the
court’s inherent authority to impose sanctions for conduct which
abuses the judicial process.
Id. at 10-13.
They do not rely on
Rule 37.
The defendants’ Response argues that the plaintiffs’ Motion
should not be considered at all because the plaintiffs did not meet
and confer in an attempt to resolve the dispute, pursuant to our
Court’s Local Rule 37.1 (Response, ECF No. 212, at 2).
The
defendants assert that § 1927 requires a showing of subjective bad
faith, and that Ethicon and its attorneys acted in good faith and
with substantial justification.
plaintiffs
for
incidents.
Id. at 7.
improper conduct.
not
asking
Id. at 5-13.
more
questions
They chide the
concerning
other
They dispute any suggestion of a pattern of
Id. at 13-19.
In support of their assertions,
they provide an affidavit of Kristi Geier, the defendants’ Risk
Manager, who was responsible for gathering the information for the
discovery responses (ECF No. 212-3).
In reply, the plaintiffs contend that the defendants were in
filed under seal at ECF No. 207-4.
7
the wrong from the start, when they responded to the First Set of
requests.
(Reply, ECF No. 231, at 1.)
They note that Federal Rule
of Civil Procedure 37 and Local Rule 37.1 are inapplicable to their
Motion.
Id. at 11-14.
The reply is a particularly compelling
document.
Applicable Law - Rule 26(g)
Federal Rule of Civil Procedure 26(g) provides, in pertinent
part, as follows:
(g)
Signing
Disclosures
and
Discovery
Requests,
Responses, and Objections.
(1) Signature Required; Effect of Signature.
Every disclosure under Rule 26(a)(1) or (a)(3) and
every discovery request, response, or objection
must be signed by at least one attorney of record
in the attorney’s own name . . .. By signing, an
attorney or party certifies that to the best of the
person’s knowledge, information, and belief formed
after a reasonable inquiry:
(A) with respect to a disclosure, it is
complete and correct as of the time it is
made; and
(B) with respect to a discovery request,
response, or objection, it is:
(i) consistent with these rules and
warranted by existing law or by a
nonfrivolous argument for extending,
modifying, or reversing existing law, or
for establishing new law;
(ii) not interposed for any improper
purpose, such as to harass, cause
unnecessary delay, or needlessly increase
the cost of litigation; and
(iii) neither unreasonable nor unduly
burdensome or expensive, considering the
needs of the case, prior discovery in the
case, the amount in controversy, and the
importance of the issues at stake in the
action.
* * *
(3) Sanction for Improper Certification.
If a
8
certification
violates
this
rule
without
substantial justification, the court, on motion or
on its own, must impose an appropriate sanction on
the signer, the party on whose behalf the signer
was acting, or both. The sanction may include an
order to pay the reasonable expenses, including
attorney’s fees, caused by the violation.
The
Advisory
Committee
Notes
to
Rule
26(g)
provide
amplification of parties’ and attorneys’ responsibilities while
engaging in pretrial discovery:
Rule 26(g) imposes an affirmative duty to engage in
pretrial discovery in a responsible manner that is
consistent with the spirit and purposes of Rules 26
through 37. In addition, Rule 26(g) is designed to curb
discovery abuse by explicitly encouraging the imposition
of sanctions. The subdivision provides a deterrent to
both excessive discovery and evasion by imposing a
certification requirement that obliges each attorney to
stop and think about the legitimacy of a discovery
request, a response thereto, or an objection. * * *
Although the certification duty requires the lawyer
to pause and consider the reasonableness of his request,
response, or objection, it is not meant to discourage or
restrict necessary and legitimate discovery. The rule
simply requires that the attorney make a reasonable
inquiry into the factual basis of his response, request,
or objection.
The duty to make a “reasonable inquiry” is satisfied
if the investigation undertaken by the attorney and the
conclusions drawn therefrom are reasonable under the
circumstances. It is an objective standard similar to
the one imposed by Rule 11. See the Advisory Committee
Note to Rule 11. See also Kinee v. Abraham Lincoln Fed.
Sav. & Loan Ass’n,, 365 F. Supp. 975 (E.D. Pa. 1973). In
making the inquiry, the attorney may rely on assertions
by the client and on communications with other counsel as
long as that reliance is appropriate under the
circumstances.
Ultimately, what is reasonable is a
matter for the court to decide on the totality of the
circumstances.
Rule 26(g) does not require the signing attorney to
9
certify the truthfulness of the client’s factual
responses to a discovery request. Rather, the signature
certifies that the lawyer has made a reasonable effort to
assure that the client has provided all the information
and documents available to him that are responsive to the
discovery demand. * * *
Notes of Advisory Committee on Rules: 1983 Amendment (West 2011).
Two decisions from the District of Maryland discuss Rule 26(g)
extensively, Poole v. Textron, Inc., 192 F.R.D. 494 (D. Md. 2000),
and Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md.
2008), and their analyses have assisted the undersigned in this
matter.
Analysis
Response to Request No. 16, First Set
The discussion of the defendants’ response to Request No. 16
must begin with Kristi Geier, who has received paralegal training
and is employed as the defendants’ Risk Manager.
No. 212-3, at 1.)
(Affidavit, ECF
She was responsible for assisting counsel “with
the formulation of answers and responses to Plaintiffs’ discovery.”
Id.
In one of several self-serving statements, she claims, “Each
answer and
response
provided
to
Plaintiffs
was
conducted a reasonable investigation and inquiry.”
done
after I
Id.
In her
affidavit, Ms. Geier stated under oath that, with respect to
Request
No.
16,
she
“interpreted
this
request
to
seek
any
litigation materials involving the claim that the stapler had not
been loaded with staples at the time it was manufactured and
packaged.”
Id. at 2.
She further stated that she did not
10
interpret Request No. 16 “to include any reports to the FDA or
MedWatch reports filed by Ethicon” . . . or “to apply to ‘Product
Inquiry Verification Reports.’” Id.
During her testimony at the
evidentiary hearing on the Motion for Sanctions, Ms. Geier stated
that she
“thought
this
potential litigation.”
was
asking
for litigation
or
claims,
She claimed that during her search, she
found no litigation in which it was claimed that a stapler did not
have staples in it.
The Court finds Ms. Geier’s interpretation of Request No. 16
to be unreasonable in the extreme and, frankly, nonsensical. There
was no justification to single out one word in the request,
“lawsuits,” and to limit her search accordingly, thereby ignoring
“warranty claims, field reports, or other claims or reports.”
Moreover, her interpretation is not reasonable when considered in
the context of the rest of the request, which listed many potential
groups
of
persons
“[Ethicon’s]
physicians,
quality
who
could
control
salespersons,
Defendant, or other persons.”
generate
personnel,
distributors,
claims
the
or
FDA,
employees
reports:
patients,
of
this
Most of those persons would not be
expected to file a lawsuit concerning injuries received as a result
of a surgeon using a stapler which had not been loaded with
staples.
Ms. Geier further stated that she “did not interpret
Request No. 16 to include any reports to the FDA or MedWatch
reports filed by Ethicon.
Further, I did not interpret this
11
request
to
(‘PIVR’).”
apply
Id.
to
‘Product
Inquiry
Verification
Reports’
No matter how Ethicon titles its reports of
complaints about staplers, it was Ms. Geier’s “affirmative duty”
to respond in a manner which was both complete and correct.
she did not do.
This
The defendants’ response was inappropriately
limited to litigation.
The Court finds that the response to
Request No. 16 was not substantially justified.
Counsel for Ethicon also had an “affirmative duty” to make a
“reasonable inquiry” to satisfy themselves that the response to
Request No. 16 was not “unreasonable.”
The Court concludes that
counsel for Ethicon either failed to inquire of Ms. Geier as to the
basis
for
the
response
or
agreed
with
her
unreasonable
interpretation of Request No. 16. The Court doubts that the latter
is true.
Attorney Robert H. Akers signed the responses which
included the response to Request No. 16, thereby certifying that to
the best of his knowledge, information and belief formed after a
reasonable inquiry, the response was consistent with the Federal
Rules of Civil Procedure and not unreasonable.
3.)
(ECF No. 131-1, at
According to the Advisory Committee Notes, his signature was
a certification that he had “made a reasonable effort to assure
that the client has provided all the information and documents
available to him that are responsive to the discovery demand.”
Clearly Mr. Akers did not do this.
The Court finds that Mr. Akers’
certification was improper and not substantially justified.
12
Response to Request No. 1, Third Set
Some of the testimony at the evidentiary hearing concerned the
so-called Siebel database, which is the electronic record of all
complaints, claims, inquiries and reports concerning Ethicon’s
products.
The database is searchable by “Voice of Customer”
(“VOC”) Codes, which are set forth on a list.
Ms. Geier’s
affidavit states that she relied on the language in the plaintiffs’
request that the “stapler failed to fire due to a lack of staples.”
(ECF No. 212-3, at 2.)
After consulting with Ethicon’s Customer
Quality Department, which usually conducts searches of the Siebel
database, a search using the VOC Code “missing staples” produced
seven results.
Id.
A subsequent search indicates that use of the
VOC Code “would not staple,” would have produced dozens more
results.
Despite having seven results from the search, only one result
was produced to the plaintiffs, with a notation that the result was
limited to the United States, one size of stapler, and a specified
time period.
the
other
At the evidentiary hearing, Ms. Geier testified that
six
results
were
withheld
conversations with Ethicon’s attorneys.
as
a
result
of
her
Ultimately, the other six
results were produced after the plaintiffs’ attorney complained on
January 9, 2011, and after he learned about the other six during
Mr. Gabaldon’s first deposition on February 23, 2011.
There is no
dispute that Ethicon’s staplers are distributed throughout the
13
world, and those sold in the United States are identical to those
sold in other nations.
There is no dispute that different sizes of
staplers function the same.
Putting
aside
the
inadequate
search
for
other
incidents
related to Request No. 16, the Court finds that Ethicon’s initial
response
to
the
plaintiffs’
Request
No.
1,
Third
Set,
was
unreasonably restricted to only one VOC code, “missing staples.”
At the evidentiary hearing, Ms. Geier testified that she looked at
other VOC codes, including “would not staple,” and concluded that
“missing staples,” most closely matched the request.
It appears
that, until late Spring, 2011, she did not run any search for
incidents coded “would not staple,” despite the language in the
plaintiffs’ Complaint that the stapler “malfunctioned and failed to
discharge any staples.”
The Court further finds that the withholding of six of the
seven incidents revealed in the search was unreasonable, because
there was no good reason for limiting the response to a particular
size of stapler sold in the United States.
Ms. Geier testified at
the evidentiary hearing that she and counsel for Ethicon simply
agreed to withhold information as to the six incidents.
Mr. Akers
signed the response; the Court has no information as to the
identify of the attorneys who decided, with Ms. Geier, to withhold
the six other incidents. The Court finds that the certification by
Mr. Akers violated Rule 26(g) without substantial justification.
14
Responses to Request No. 2, Tenth Set and Request No. 5, Ninth Set
On April 26, 2011, the defendants were directed to respond to
the Tenth Set of Requests, and the plaintiffs were permitted to
serve their Ninth Set.
(ECF Nos. 100, 101.)
The defendants agreed
that Mr. Gabaldon could be deposed again to testify about the seven
additional incidents; his deposition occurred on May 24, 2011. Ten
days later, the defendants disclosed an additional 125 other
incidents, of which plaintiffs’ counsel identifies 44 as being
similar to this case.
These incidents were located using the VOC
code “would not staple.”2
Ms. Geier’s affidavit is silent as to when the defendants
conducted
incidents.
the
search
which
resulted
in
the
125
additional
The search should have been completed prior to Mr.
Gabaldon’s deposition, if the defendants had any intention of
timely responding to the requests.
The responses were served
shortly after discovery closed.
The Importance of the Other Similar Incidents
During
the
evidentiary
hearing,
Carlos
Gabaldon
(the
defendants’ Rule 30(b)(6) witness) testified that “it’s impossible
for a stapler to leave the plant without staples.”
2
He described
Ms. Geier further testified that the responses as to
other similar incidents were limited to 2002 forward, because the
Siebel database was begun in 2002. Documents produced indicate
that 106 staplers were returned for evaluation between November
2001 and March 2002, and are searchable in another database. The
plaintiffs have not made an issue as to these staplers.
15
“Vision,” a machine that takes photographs of each stapler produced
and analyzes the images to insure quality control.
He stated that
the Vision system changed shortly before the stapler used on Ms.
Hershberger was manufactured.
During the manufacturing process,
the Vision system is challenged at the beginning, in the middle,
and at the end of each batch, to determine if it is accurately
spotting defective staplers. If a problem is discerned, someone is
called to fix the equipment.
Twenty-one of the 45 other incidents involved staplers which
Mr. Gabaldon tested when they were returned to Ethicon after
decontamination.
The reports on the 21 incidents (titled either
“Complaint File” or “Verification Report - Product Issue”), found
at Plaintiff’s Exhibit No. 36 (under seal), contain an “Event
Description.”
The reports describe occurrences remarkably similar
to Ms. Hershberger’s: the stapler cut tissue but did not staple it,
resulting in longer surgeries and additional surgeries.
If the
defendants’ witnesses were to testify that it is “impossible” for
a stapler to leave its manufacturing facility without staples, a
jury would be seriously misled.
The Defendants’ Excuses and Arguments
The defendants oppose the plaintiffs’ Motion for Sanctions.
First they assert that the Court should not entertain the Motion at
all, because the plaintiffs did not attempt to meet and confer
prior to filing.
The defendants rely on Local Rule 37.1(b), which
16
states:
Before filing any discovery motion, including any motion
for sanctions or for a protective order, counsel for each
party shall make a good faith effort to confer in person
or by telephone to narrow the areas of disagreement to
the greatest possible extent.
It shall be the
responsibility of counsel for the moving party to arrange
for the meeting.
Unlike other provisions of the same Local Rule, subsection (b)
fails to set forth any consequence for a failure to comply.
In accordance with the policy of the Judicial Conference, our
Local Rules are numbered to correspond to the Federal Rules of
Civil Procedure; Local Rule 37.1 amplifies Federal Rule of Civil
Procedure 37.
Federal Rule 37(a) requires that a party moving to
compel discovery must confer or attempt to confer in good faith.
The penalty for failing to do so is the inability to recover fees
and costs, including attorney’s fees.
Federal Rule 37(b) contains
no such requirement to confer or attempt to confer for a party
moving for sanctions for failure to comply with a court order.
Our
Local Rule 37.1 therefore imposes an extra hurdle for a party who
seeks sanctions for noncompliance with an order, but it contains no
consequence for failing to confer.
The plaintiffs make clear that
they are not proceeding under Rule 37.
Indeed, it would be
inappropriate for them to do so, because it appears that the
defendants have not violated a court order.
This District has promulgated four pages of Local Rules
relating to Federal Rule of Civil Procedure 26, none of which
17
concerns Rule 26(g).
The only reference to Federal Rule 26(g) is
found in Local Rule 37.1(a): “Objections shall comply with FR Civ
P 26(g) . . ..”
Of importance is Federal Rule 26(g)’s provision that a court,
“on
its
own,”
must
impose
an
appropriate
sanction
if
a
certification violates the rule without substantial justification.
If a motion from a party is not required before a sanction is
imposed, then surely a local rule should not restrict a judge’s
discretion to act, with or without a motion.
The Court concludes
that Local Rule 37.1 does not apply to motions filed under Federal
Rule 26(g).
Second, the defendants chide the plaintiffs for not asking
certain questions at various depositions (ECF No. 212, at 6-7), as
if the plaintiffs were at fault for believing the defendants’
response to Request No. 16, First Set.
reverses
the
defendants’
duties
duty
to
defendants’ duty to
set
forth
make
a
in
The defendants’ position
Rule
“reasonable
26(g).
It
was
the
inquiry;” it
was
the
make a reasonable response; and, pursuant to
Rule 26(e), it was the defendants’ duty to supplement its discovery
responses in a timely manner.
The defendants’ breached their
duties in all three respects.
Third, the defendants profess that in all respects, they acted
in good faith.
Id., at 5-13.
The Court is not in a position to
assess whether Ms. Geier purposefully and intentionally restricted
18
her search of other similar incidents, and whether the defendants’
counsel had a bad motive in their approach to the plaintiffs’
efforts to discover other similar incidents, and makes no finding
as to bad faith.
It is clear that the defendants, like other
product manufacturers, were not motivated to reveal other similar
incidents of injuries to consumers; their conduct furthered their
self-interest in limiting their exposure.
Sanctions
Rule 26(g) requires imposition of “an appropriate sanction on
the signer, the party on whose behalf the signer was acting, or
both,” if the Court concludes that a discovery certification
violates the Rule without substantial justification. “The sanction
may include an order to pay the reasonable expenses, including
attorney’s fees, caused by the violation.”
There is no reference
to the menu of possible sanctions found in Rule 37; the Advisory
Committee Notes state that “[t]he nature of the sanction is a
matter of judicial discretion to be exercised in light of the
particular circumstances.”
Based upon the Court’s findings that
the defendants and their counsel violated Federal Rule 26(g), it is
hereby ORDERED that the plaintiffs’ Motion for Sanctions (ECF No.
132)
131) is granted.
The plaintiffs have requested a broad array of sanctions,
including attorney’s fees and costs for a variety of activities,
evidentiary rulings, and default judgment as to liability.
19
(ECF
No. 132, at 15.)
Upon consideration of the disputed facts in this
case, and mindful of the strong preference that litigation be
resolved on the merits, the Court declines to recommend to the
presiding District Judge that he enter default judgment as to
Ethicon’s liability.
However, it is respectfully RECOMMENDED that
the presiding District Judge admit into evidence testimony and
exhibits concerning other similar incidents in which users of the
staplers complained that the staplers cut tissue but did not staple
it, and deny the defendants’ Motion in Limine No. 10, ECF No. 181.
At
present,
incidents.
according
to
the
plaintiffs,
there
are
45
such
It is further RECOMMENDED that the presiding District
Judge admit into evidence testimony and exhibits concerning the
defendants’ conduct during discovery with respect to other similar
incidents.
Based on the particular circumstances in this case, the Court
intends, at a minimum, to require payment by the defendants and
their counsel of the plaintiffs’ attorney’s reasonable fees and
costs associated with the Motion for Sanctions, the filing of
discovery requests for other similar incidents after Request No.
16, and Mr. Gabaldon’s two depositions.
In addition, if the
plaintiffs choose to take any additional depositions, all such
depositions shall take place in Charleston, West Virginia, and the
defendants will be responsible for the travel expenses of the
20
witnesses.3
To
undertake
a
thorough
consideration
of
sanctions, the Court needs additional information.
appropriate
It is further
ORDERED that, within one week of the entry of this Memorandum
Opinion, Order and Recommendations, the defendants shall file an
affidavit by a person with extensive knowledge of the Siebel
database and its metadata (not Kristi Geier), setting forth the
following information regarding searches of the Siebel database
concerning staplers, using the VOC code “would not staple,” between
February 6, 2009 and June 3, 2011:
a.
b.
The date of each search;
The name and title of the person who performed each
search; and
c.
The results of each search.
It is further ORDERED that within two weeks of entry of this
Memorandum Opinion, Order and Recommendations, counsel for the
plaintiffs will file an affidavit of his reasonable attorney’s fees
and costs associated with the Motion for Sanctions, the filing of
discovery requests for other similar incidents after Request No.
16, and Mr. Gabaldon’s two depositions, with sufficient detail that
the Court will be able to assess whether the time spent and the
expenses incurred were appropriate for the task specified.
3
The
The Court has learned that during a recent status
conference, counsel for the plaintiffs indicated that he does not
need additional discovery.
21
defendants shall file their response to the affidavit within two
weeks after the affidavit is filed; the response must indicate
whether the
division
defense
of
attorneys
responsibility
attorney’s fees and costs.
and
for
the
defendants
payment
of
the
agree
on
a
plaintiffs’
The plaintiffs’ attorney may file a
reply within one week after the response is filed.
Identification of Peter McNally as Witness
After
an
incident
occurs
which
results
in
litigation,
investigators typically try to answer two major questions: What
happened? Who are the witnesses? With respect to Ms. Hershberger’s
surgery on February 6, 2009, a meeting was held at Charleston Area
Medical Center on February 19, 2009, attended by the surgeon (Dr.
Maxwell), the surgical charge nurse who had custody of the stapler
(Ms. Campbell), the Ethicon sales representative (Cindy Hutchings),
and the Ethicon District Sales Manager (Peter McNally).
The focus
of the meeting was the allegation that the stapler had not been
loaded with staples, so that it cut tissue but did not staple it.
Dr. Maxwell has testified that on February 19, 2009, Peter McNally
looked at the stapler used on Ms. Hershberger on February 6, 2009,
and declared, in words to this effect: “This product is obviously
defective, and I would testify in court to that fact.”
Dr. Maxwell, Dec. 21, 2010, ECF No. 131-16, at 92.4)
4
(Depo. of
At the
Citations to deposition testimony are to the deposition
transcript page.
22
evidentiary hearing, Mr. McNally denied making such a statement,
but Ms. Campbell testified that he said, “If [I] had to testify in
a court at that time [I] would have to say that the device was
defective.”
She wrote a memorandum that day and quoted Mr.
McNally’s statement.
(Mem. dated Feb. 19, 2009, ECF No. 131-27.)
The plaintiffs complain that the defendants’ Rule 26(a)(1)
disclosures, served on September 10, 2010, listed Cindy Hutchings,
but not Peter McNally.
defendants
served
(ECF No. 131-23.)
their
On October 21, 2010, the
responses
to
the
plaintiffs’
Interrogatories 1 and 5, First Set. When asked to identify persons
with knowledge
of
facts,
or
persons who
participated
in
any
investigation of the incident at issue, the defendants listed only
Cindy Hutchings, Marian Campbell and Dr. Maxwell, but not Peter
McNally.
(ECF No. 131-2, at 3, 5-6.)
answers to the interrogatories.
Kristi Geier verified the
Id. at 8.
On October 22, 2010,
the defendants served their supplemental Rule 26(a)(1) disclosures
and added Marian Campbell, but not Peter McNally. (ECF No. 131-24,
at 2.)
On November 18, 2010, counsel for the plaintiffs sent an
email to defense counsel, asking about “Pete McNally.” On December
7,
2010,
the
defendants
served
supplemental
answers
to
interrogatories and, for the first time, added Peter McNally as a
person with knowledge, and summarized their version of the February
19, 2009 meeting.
The
(ECF No. 131-25, at 4-5.)
plaintiffs
contend
that
23
the
defendants’
failure
to
disclose Peter McNally as a participant in the February 19, 2009
meeting is part of a pattern of improper conduct.
(ECF No. 132, at
8-9.)
The defendants respond that they did not purposefully or in
bad faith withhold disclosure of his identify.
17.)
(ECF No. 212, at
They recite that Kristi Geier first spoke with Peter McNally
in October, 2010, but they did not discuss the February 19, 2009
meeting. Id. The defendants further relate that Peter McNally was
away from work for six weeks due to his wife’s illness, and that
“it was
not
additional
until mid-December [2010]
substantial
information
that
Ms.
regarding
Geier
Mr.
knowledge surrounding the facts related to this case.”
gained
McNally’s
Id.
They
point out that the plaintiffs have suffered no prejudice, in that
he was revealed prior to any depositions.
Id. at 18.
In reply, the plaintiffs argue that “Ethicon has yet to offer
a
reasonable
explanation
for
how
it
could
know
about
the
involvement of Cindy Hutchings in the above meeting and not know
about the involvement of Peter McNally in the exact same meeting .
. ..”
(ECF No. 231, at 16.)
The Court does not fault the defendants for not including
Peter McNally in its Rule 26(a)(1) disclosures. He is probably not
a person that the defendants “may use to support [their] . . .
defenses.”
Omitting Peter McNally from the answers to Interrogatories 1
24
and 5 is more problematic.
Rule 26(g) requires a responding
attorney or party to certify that “to the best of the person’s
knowledge,
information,
and
belief
formed
after
a
reasonable
inquiry: with respect to a discovery . . . response . . ., it is:
consistent with these rules . . .; not interposed for any improper
purpose . . .; and neither unreasonable nor unduly burdensome . .
..”
The Advisory Committee Notes specify that
Rule 26(g) does not require the signing attorney to
certify the truthfulness of the client’s factual
responses to a discovery request. Rather, the signature
certifies that the lawyer has made a reasonable effort to
assure that the client has provided all the information
and documents available to him that are responsive to the
discovery demand. Thus, the lawyer’s certification under
Rule 26(g) should be distinguished from other signature
requirements in the rules, such as those in Rules 30(e)
and 33.
Rule 33(b)(3) requires that answers be made “under oath.”
Kristi Geier testified at the evidentiary hearing that, as a
matter
of
course,
representative
shortly
she
contacted
after
she
the
received
appropriate
a
letter
sales
from
the
plaintiffs’ attorney, in November, 2009, placing Ethicon on notice
to preserve the subject stapler in anticipation of litigation. She
stated that she is concerned with the answers to three primary
questions: Did the surgeon say what happened?
with the patient?
Where is the device?
What is going on
She stated that she did
not ask Ms. Hutchings whether anyone else employed by Ethicon had
knowledge of the incident, and she made no effort to determine
whether other employees had such knowledge.
25
The Court cannot determine whether the concealment of Peter
McNally as a participant in the February 19, 2009 meeting, from
October
21,
2010
(service
of
answers
to
interrogatories)
to
December 7, 2010 (service of supplemental answers), was a willful
omission or not.
It appears that the plaintiffs suffered no
prejudice; the disclosure of Marian Campbell as a witness would,
more than likely, lead the plaintiffs to Peter McNally.
The Court
finds that there is insufficient evidence that Ms. Geier violated
Rule 33 or that defense counsel violated Rule 26(g) or Rule 33 with
respect to Peter McNally.
The Plaintiffs’ Other Claims
The Court has carefully considered the plaintiffs’ complaints
about other conduct by the defendants relating to (1) the failure
to document a statement attributed to Dr. Maxwell, (2) the filing
of MedWatch reports concerning the incident, (3) a statement by
Karen Kulinski-Hoffman to the hospital, and (4) disclosure of
expert witnesses, and the defendants’ response.
This judicial
officer is referred discovery disputes only and declines to address
these other claims.
28 U.S.C. § 1927 and Inherent Authority
The undersigned declines to proceed under either § 1927 or the
inherent authority of the court, having determined that Rule 26(g)
adequately addresses these matters.
26
The Clerk is directed to transmit this Memorandum Opinion,
Order and Recommendations to counsel of record.
ENTER:
August 12, 2011
27
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