Elkins v. American Medical Systems, Inc.
Filing
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MEMORANDUM OPINION AND ORDER granting 47 EXPEDITED MOTION by American Medical Systems, Inc. to Compel Deposition Testimony and Production of Documents and for Sanctions but holds in abeyance a ruling on Defendant's motion for sanctions; it is directed that Muhammad-Zoheb Bhojani, President and CEO of Optimum Orthopedics & Spine, should appear for a reconvened deposition on 3/11/2016 at 9:00 a.m. pursuant to subpoena, on behalf of himself and as the custodian of records of Optimum Orth opedics & Spine, to produce all documents requested in the attachment to the subpoenas for testimony, and to provide answers to all questions unless a valid privilege or protection applies; AMS shall have through and including 3/18/2016 to file an af fidavit of reasonable fees and expenses claimed by AMS, as well as any supportive documentation or argument to justify the amount of fees, expenses, and sanctions requested; Muhammad-Zoheb Bhojani shall have through and including 4/08/2016 to respond to AMS's submissions; AMS shall have through and including 4/18/2016 to file a reply memorandum. Signed by Magistrate Judge Cheryl A. Eifert on 2/25/2016. (cc: counsel of record) (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
MEMORANDUM OPINION AND ORDER
Pending in the three above-styled civil actions is Defendant’s Expedited Motion to
Compel Deposition Testimony and Production of Documents and for Sanctions.1 An
Order was entered providing a briefing schedule on the motion,2 and the time for filing
responses in opposition to the motion has expired. For the reasons set forth below, the
court GRANTS Defendant’s motion to compel testimony and documents, but holds in
abeyance a ruling on Defendant’s motion for sanctions.
I.
Relevant Facts
This multidistrict litigation (“MDL”) involves pelvic mesh products manufactured,
marketed, and distributed by American Medical Systems, Inc. (“AMS”). The products
include surgical mesh intended to be permanently implanted during operative procedures
for the treatment of pelvic organ prolapse and stress urinary incontinence. Plaintiffs
1
ECF No. 50 in Centola v. AMS; ECF No. 47 in Elkins v. AMS; ECF No. 49 in Casias v. AMS.
Counsel for AMS notified Mohammad-Zoheb Bhojani of the briefing schedule as he has not appeared on
the record.
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claim, in relevant part, that the mesh is defective, causing harm to the body and leading
to complications, such as chronic pain and scarring. Consequently, some of the plaintiffs
have undergone surgical procedures to revise the implanted mesh, or to remove it
altogether (“corrective surgery”).
In the course of discovery, AMS learned that a portion of the plaintiffs had their
corrective surgeries arranged and funded through third-party funding companies.
According to AMS, these arrangements were frequently complex, often expensive, and
occasionally unnecessary, as some of the plaintiffs receiving the funding had health
insurance to cover similar procedures. AMS was stymied in its efforts to discover the
details of the funding arrangements from the plaintiffs, who seemed to know little more
about them than AMS. Confronted with a lack of transparency regarding a key element of
damages, AMS began seeking information from nonparties about the third-party funding
of corrective surgeries. At issue were both the cost and the medical necessity of the
procedures.
On January 8, 2016, AMS served subpoenas for testimony and records on the
Records Custodian of Optimum Orthopedics & Spine and on Muhammad-Zoheb Bhojani,
CEO and Manager of Optimum Orthopedics & Spine. The deponents were instructed to
appear on January 28, 2016 at 9:00 a.m. at a nearby court reporter’s officer in Orlando,
Florida and to bring the requested documents with them. The subpoenas included the
standard information about the deponent’s duties in responding, the protections afforded
to the deponent, and steps to take in order to request quashal or modification of the
subpoena. On January 28, Mr. Bhojani appeared, both in his individual capacity and as
the records custodian for Optimum Orthopedics & Spine. Although he brought some
records with him, it quickly became apparent that Mr. Bhojani had not read the subpoena
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carefully and had not made a conscientious effort to comply with the document requests.
The deposition commenced with Mr. Bhojani explaining that he managed
Optimum Orthopedics & Spine and was appearing in response to both subpoenas. Mr.
Bhojani answered preliminary questions, but when the line of inquiry turned to Mr.
Bhojani’s dealings with lawyers representing plaintiffs in pelvic mesh cases, Mr. Bhojani
replied: “I don’t feel comfortable answering that question without my attorney. I don’t see
why I’m being asked these questions, too be honest with you.” Ultimately, Mr. Bhojani
refused to answer any such questions, asserting his Fifth Amendment right against selfincrimination. Mr. Bhojani continued to plead the Fifth Amendment in response to any
question he did not wish to answer, regardless of whether or not the question implicated
him criminally. The deposition concluded with Mr. Bhojani sharing little substantive
information regarding the arranging, scheduling, and funding of corrective surgeries.
II.
Analysis
AMS seeks an Order compelling Mr. Bhojani to appear at his own expense for a
reconvened deposition on behalf of himself and Optimum Orthopedics & Spine to answer
questions regarding the funding of corrective surgeries, and to produce the subpoenaed
documents. In addition, AMS requests an award of reasonable fees to reimburse it for the
costs of both depositions and the cost of filing the motion to compel, and for monetary
sanctions to punish Mr. Bhojani for wasting the time of counsel and the court.
Fed. R. Civ. P. 37(a) allows a party to move the court for an order compelling
discovery. When the discovery is sought from a nonparty, the motion generally must be
made “in the court where the discovery is or will be taken.” Fed. R. Civ. P. 37(a)(2).
Similarly, Rule 45(g) provides that “the court for the district where compliance is
required” may hold in contempt a person “who, having been served, fails without
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adequate excuse to obey [a] subpoena or an order related to it.” In this case, the subpoenas
served on Mr. Bhojani and his company were issued by this court, but the depositions and
document production were to occur in Orlando, Florida. Consequently, the district of
production and compliance was the Middle District of Florida, and a motion to compel or
for contempt would normally be filed in that district court.
Nevertheless, under 28 U.S.C. § 1407, a court presiding over multidistrict litigation
may “exercise the powers of a district judge in any district for the purpose of conducting
pretrial depositions in such coordinated or consolidated pretrial proceedings” (emphasis
added). Moreover, courts have specifically held that the authority granted to a presiding
court under § 1407 extends to other pretrial matters, such as the production of
documents, “even when the subpoena is not issued in conjunction with a deposition.” In
re Genetically Modified Rice Litigation, Case 4:06-MD-1811 CDP, 2009 WL 3164425, *1
(E.D.Mo. Sept. 28, 2009)(collecting cases). Indeed, “the rationale underlying the MDL
statute of ‘just and efficient’ resolution of pretrial proceedings requires the conclusion
that Section 1407(b)'s grant of authority applies to both deposition subpoenas and
documents-only subpoenas.” In re Neurontin Marketing, Sales Practices, and Product
Liability Litigation, 245 F.R.D. 55, 58 (D.Mass. 2007) (quoting U.S. ex rel. Pogue v.
Diabetes Treatment Centers of America, 444 F.3d 462, 469 n.4 (6th Cir. 2006)). Thus, a
presiding court “may compel production by an extra-district nonparty; enforce, modify,
or quash a subpoena directed to an extra-district nonparty; and hold an extra-district
nonparty deponent in contempt, notwithstanding the nonparty’s physical situs in a
foreign district where discovery is being conducted.” Id. (quoting U.S. ex rel. Pogue, 444
F.3d at 468-69 (6th Cir. 2006)). Therefore, this court has jurisdiction to grant the relief
requested by AMS.
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Having reviewed the deposition transcript of Mr. Bhojani, the undersigned makes
the following findings:
1.
Mr. Bhojani was served with the subpoenas and appeared in response to them;
2. Mr. Bhojani did not file a motion for a protective order, or a motion to quash or
modify the subpoenas;
3. Mr. Bhojani failed to conduct a reasonable search of company records in order to
comply with the subpoenas;
4. Mr. Bhojani’s document production did not comply with the subpoenas;
5. Mr. Bhojani failed to answer questions asked under Fed. R. Civ. P. 30, asserting a
Fifth Amendment privilege when such a privilege was inappropriate;
6. Mr. Bhojani’s actions prevented the parties from obtaining reasonable discovery.
7. Mr. Bhojani did not comply with either subpoena.
Therefore, the court ORDERS Muhammad-Zoheb Bhojani, President and CEO of
Optimum Orthopedics & Spine, to appear for a reconvened deposition on March 11,
2016 at 9:00 a.m. pursuant to subpoena, on behalf of himself and as the custodian of
records of Optimum Orthopedics & Spine, to produce all documents requested in the
attachment to the subpoenas for testimony, and to provide answers to all questions unless
a valid privilege or protection applies.
With respect to AMS’s motion for reasonable fees and sanctions, AMS shall have
through and including March 18, 2016 in which to file an affidavit of reasonable fees
and expenses claimed by AMS, as well as any supportive documentation or argument to
justify the amount of fees, expenses, and sanctions requested. See Robinson v. Equifax
Information Services, LLC, 560 F.3d 235, 243-44 (4th Cir. 2009). Failure to timely file
the affidavit and supporting documentation shall result in a denial of fees, costs, and
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sanctions. Muhammad-Zoheb Bhojani shall have through and including April 8,
2016 in which to respond to AMS’s submissions. The response shall include any
justification that would obviate against an award of expenses and sanctions, or, in the
alternative, shall include a statement identifying the attorney and/or party whose conduct
necessitated the motion to compel. Failure to file a response shall be deemed an
admission of or agreement with the representations and arguments of AMS. AMS shall
have through and including April 18, 2016 in which to file a reply memorandum. At the
conclusion of the period allowed for briefing, the Court shall either schedule a hearing, or
simply rule on the request for reasonable fees and costs.
Counsel for AMS is ORDERED to serve a copy of this Order on MuhammadZoheb Bhojani.
The Clerk is instructed to provide a copy of this Order to counsel of record.
ENTERED: February 25, 2016
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