Elkins v. American Medical Systems, Inc.

Filing 13

ORDER denying 9 MOTION by Julita Centola, Phillip Centola for Protective Order and MOTION to Quash Subpoenas for Depositions of Dr. Earle Pescatore and Dr. Michael Hulse, as more fully set forth herein. Signed by Magistrate Judge Cheryl A. Eifert on 11/16/2015. (cc: attys; any unrepresented party) (REF: 2:14-cv-29705, Centola; 2:14-cv-30578, Elkins; 2:14-cv-30580, Casias) (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE: AMERICAN MEDICAL SYSTEMS, INC.
PELVIC REPAIR SYSTEMS
PRODUCT LIABILITY LITIGATION

MDL No. 2325

-------------------------------------------------------------THIS ORDER RELATES ONLY TO CIVIL ACTIONS:
Centola v. AMS, Inc.
Elkins v. AMS, Inc.
Casias v. AMS, Inc.

2:14-cv-29705
2:14-cv-30578
2:14-cv-30580

ORDER
Pending before the court are the Plaintiffs’ Motions for Protective Order and
Motions to Quash Subpoenas for Deposition of Dr. Earle Pescatore. (ECF No. 9 in each
case). Defendant responded to the motions, and Plaintiffs have replied. Therefore, the
motions are ready for disposition. For the reasons that follow, the court DENIES
Plaintiffs’ motions.
Defendant American Medical Systems, Inc. (“AMS”) seeks to depose Dr. Pescatore,
a physician who performed mesh explant surgeries on Plaintiffs in the above-styled civil
actions. AMS believes that discovery is warranted not only because Dr. Pescatore is a
treating physician, but also because AMS believes the circumstances surrounding his
surgeries are “suspect.” AMS points to the geographical distance between Dr. Pescatore’s
office and Plaintiffs’ residences; the lack of any existing or ongoing treatment relationship
between Dr. Pescatore and Plaintiffs; the fact that some of the plaintiffs learned of Dr.
Pescatore from lawyers involved in mesh litigation; and Dr. Pescatore’s refusal to accept

insurance to cover the cost of the procedures. AMS indicates that Plaintiffs share the same
legal counsel in this multidistrict litigation (“MDL”). AMS contends that it was willing to
work with Plaintiffs’ counsel to find a convenient date for Dr. Pescatore’s deposition in all
three cases; however, Plaintiffs’ counsel refused to participate. Consequently, AMS
proceeded to schedule the depositions to take place on December 5, 2015, a date
convenient for Dr. Pescatore and his lawyer.
Plaintiffs move for a protective order and for an order quashing the deposition
subpoenas served on Dr. Pescatore on the ground that the above-styled cases are not
bellwether or discovery-pool cases and have not been scheduled for trial. Moreover, the
parties have not conferred as required by Federal Rule of Civil Procedure 26(f), which is
a prerequisite to conducting discovery.1 Plaintiffs argue that AMS is acting on
manufactured suspicions involving Dr. Pescatore, despite Plaintiffs’ testimony that they
purposefully selected him for their explant surgeries based upon his experience and
reputation. Plaintiffs maintain that AMS has no legal basis upon which to depose Dr.
Pescatore.
Contrary to Plaintiffs’ assertion, Federal Rule of Civil Procedure 26(b) authorizes
a party to “obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense.” It is this rule that provides the legal basis for AMS to depose Dr.
Pescatore. Clearly, Dr. Pescatore’s testimony is relevant to Plaintiffs’ claims, as he treated
Plaintiffs for the medical condition/device about which they now complain, and his
treatment costs will be included as an element of damages in their actions against AMS.
With respect to Plaintiffs’ contention that Rule 26(f) requires a discovery conference in
Plaintiffs also complain that AMS did not discuss the scheduling of the depositions prior to unilaterally
selecting a date and issuing notices and subpoenas. However, that argument was in reference to an earlierscheduled date, which has now been abandoned.

1

each individual case prior to the initiation of discovery, the court has ordered otherwise
in this MDL. In Pretrial Order No. 1, the court stayed discovery in the MDL pending
completion of an initial conference and various other tasks. (ECF No. 8). After finishing
the preliminary matters, the court lifted the stay in Pretrial Order No. 10, allowing the
parties to engage in discovery. (ECF No. 10). That Order applies to all cases filed in the
MDL regardless of their dates of filing. (Id.) Although the court has issued numerous
pretrial orders2 since Pretrial Order No. 10, the undersigned knows of no Order
prohibiting AMS from taking the deposition of a treating physician in an individual case,
even when the case has not been selected as a bellwether or discovery-pool case, and is
not set for trial. If such an Order exists, Plaintiffs failed to bring it to the undersigned’s
attention. Accordingly, no prohibition to the depositions exist, and Plaintiffs’ motions are
DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record.
ENTERED: November 16, 2015

2

Two hundred Pretrial Orders have been entered in this MDL at last count.