Brunstad, Elizabeth et al v. Medtronic, Inc. et al
Filing
77
ORDER granting 57 Motion to Disqualify James D. Causey; denying 70 Motion for Hearing on Motion to Disqualify James D. Causey; granting 55 Motion to Amend Scheduling Order; granting 73 Motion for Hearing on Motion to Amend Scheduling Order, s olely to allow for a telephonic hearing to set a new calendar; granting in part and denying in part 71 Motion for Leave to File Reply Memorandum. Defendants are instructed to file their proposed submission, Dkt. 71 -2, as a separate docket entry. Signed by District Judge James D. Peterson on 4/30/2015. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ELIZABETH BRUNSTAD, individually and
as personal representative of the Estate of
John Brunstad, ESTATE OF
JOHN BRUNSTAD, RACHEL BRUNSTAD,
N.B., R.B., A.B., and P.B., by and through their
Guardian ad Litem Catherine Baier,
v.
OPINION & ORDER
14-v-255-jdp
Plaintiffs,
MEDTRONIC, INC., MEDRONIC MINIMED,
and UNOMEDICAL A/S,
Defendants.
Plaintiffs, John Brunstad’s family and estate, contend that he died suddenly as a result of
the failure of his Medtronic insulin pump, which so over-delivered insulin that it caused a fatal
drop in Brunstad’s blood sugar. Defendants Medtronic, Inc., and its subsidiary Medtronic
MiniMed, Inc., have moved to disqualify plaintiffs’ expert, James D. Causey. 1 Dkt. 57. Causey
was formerly vice president of research and development at MiniMed, where he worked on the
product line at issue in this suit.
The court will grant the motion to disqualify Causey. MiniMed had a confidential
relationship with Causey, who worked under the terms of a written confidentiality agreement,
and during the course of his work, Causey undoubtedly acquired a great deal of confidential
information relevant to the current litigation. Even if much of the technical information that
Causey learned would be available to plaintiffs through discovery, it would nevertheless be
unfair to Medtronic to allow plaintiffs to use a highly placed former Medtronic employee as
1
The court will refer to these two defendants jointly as “Medtronic,” except where it is useful to
separately identify the subsidiary, which the court will refer to as “MiniMed.”
their technical expert. The court will allow plaintiffs additional time to find a replacement
expert, and the magistrate judge will conduct a telephonic conference to amend the scheduling
order.
FACTUAL BACKGROUND
An insulin pump is a medical device for the management of diabetes. A modern pump
contains a reservoir of insulin and administers programmed doses of insulin through a separate
device called an “infusion set.” The infusion set consists essentially of a thin tube that enters the
patient’s body and a connector called a “pcap,” which links to the pump. The devices at issue in
this case are the MiniMed Paradigm Model No. MMT-523 Pump and the Paradigm Silhouette
Infusion Set. Medtronic and its subsidiary MiniMed designed the pump and the pcap of the
infusion set, and they manufactured the pump. (Apparently, the infusion set itself was
manufactured by the third defendant, Unomedical A/S, although that fact is not pertinent to
this motion.)
On the current schedule, the deadline for plaintiffs’ expert reports on liability is May 29,
2015. Plaintiffs disclosed to Medtronic that they would use James Causey as their expert witness
in this case on March 8, 2015. 2 Medtronic moved to disqualify Causey ten days later, on March
18, 2015. Dkt. 57.
Causey worked for MiniMed as vice president of research and development from 1997 to
2001. Causey and MiniMed entered into an Employee Invention, Trade Secret and Confidential
Information Agreement. Dkt. 61. The confidentiality agreement states, in part:
2
Actually, the record a bit vague about when Causey was first disclosed. Defendants contend
that Causey was disclosed in a March 8, 2015 email. But the full email chain suggests that
Causey might have been known before. Dkt. 60-3, at 1-2 (counsel for defendants emailing that
“last week your side represented that Mr. Causey was unavailable to even confer with you in
advance of the depositions scheduled for next week”). The point is inconsequential: plaintiffs do
not contend that Causey was disclosed as an expert to be used in this case before March 8.
2
During the course of Employee’s employment, it is expected that
Employee may develop, and/or receive from co-workers,
“intellectual property,” inventions, trade secrets and confidential
information relating to MiniMed’s business and to its actual and
anticipated research or development, as well as other “confidential
business information.” . . . Employee will, during the term of
his/her employment and thereafter, keep confidential and refrain
from using (other than in connection with MiniMed’s business) or
disclosing to others all confidential information and trade secrets of
MiniMed which Employee develops or learns about during the
course of his/her employment. Employee agrees during and after
his/her employment to assist MiniMed in all reasonable efforts to
maintain trade secrets. . . . [Intellectual property] includes, but is
not limited to, the following with respect to MiniMed: research and
development information, laboratory engineering and/or design
books, operating methods and procedures, new concepts, electronic
and physical data, computer programs and similar items or research
projects.
Id. at 2-3. Causey was involved in the development of the insulin pump line at issue in this case.
(See the evidence cited in Dkt. 58, at 4-5.) He developed and introduced four pump models,
one of which was the 511 model—called the “Paradigm project.” Dkt. 60-1, at 3. The 511
model “is a direct predecessor model, and has many substantial similarities in operation and
technology, to the Model 523 Insulin Pump [at issue in this case].” Dkt. 59, at 4. In addition,
the pcap at issue is the same pcap that was developed as part of the Paradigm project. Thus,
during his employment at MiniMed, Causey received confidential information about the
product line at issue in this litigation, including information about product development and
quality assurance.
In a proposed reply, Medtronic contends that Causey has also previously served as an
expert for Medtronic in insulin-pump litigation. Dkt. 72-2. This would be yet another factor
strongly militating in favor of Causey’s disqualification. However, because Medtronic could have
included this information in its opening brief, the court will not consider it. Thus, plaintiffs’
opposition to Medtronic’s motion for leave to reply, Dkt. 74, is sustained in this respect. The
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court will consider Medtronic’s reply concerning plaintiffs’ estoppel argument, as Medtronic
could not have anticipated this argument in its opening brief.
ANALYSIS
A. Disqualification
There is abundant persuasive authority, mostly from federal district courts, that sets out
a generally accepted framework for analyzing motions to disqualify experts. Courts generally
hold that they have inherent power to disqualify expert witnesses to protect the integrity of the
adversarial process and to promote public confidence in the legal system. 3 See, e.g., Lifewatch Serv.
Inc. v. Braemer Inc., No. 09-cv-6001, 2010 WL 3909483, at *1 (N.D. Ill. Sept. 28, 2010). To
determine whether disqualification is warranted, courts undertake a two-step inquiry:
(1) whether the party claiming a conflict had a confidential relationship with the expert; and
(2) whether that party disclosed confidential information to the expert that is relevant to the
current litigation. See, e.g., Ross v. Am. Red Cross, 567 F. App’x 296, 304 (6th Cir.), cert. denied,
135 S. Ct. 143 (2014); Pellerin v. Honeywell Int’l Inc., No. 11-cv-1278, 2012 WL 112539, at *2
(S.D. Cal. Jan. 12, 2012). Some courts also undertake a third step, in which they consider
whether disqualification would advance the interests of justice. Ross, 567 F. App’x at 304. The
party seeking disqualification bears the burden of proving these elements. Id. Disqualification
motions should not be granted lightly, because such motions carry great potential for abuse. Sarl
v. Sprint Nextel Corp., No. 09-2269, 2013 WL 501783, at *4 (D. Kan. Feb. 8, 2013).
3
Plaintiffs cite In re Mentor Corp. Obtape Transobturator Sling Products Liability Litigation, No.
4:08-md-2004, 2010 WL 1416548 (M.D. Ga. Apr. 1, 2010), in which the court declined to
exercise its inherent authority, and offered some criticism of this line of cases. But plaintiffs do
not expressly urge this court to follow the rationale in Mentor Corp., and they seem to embrace
the consensus approach based on the court’s inherent authority. Moreover, Mentor Corp. would
not be much help to plaintiffs, because under the rationale of that case, Causey’s confidentiality
agreement would likely require his disqualification.
4
1. Confidential relationship
There is no serious question that MiniMed had a confidential relationship with Causey.
The parties agree that Causey signed a confidentiality agreement. Dkt. 61. Many courts have
held that the existence of a confidentiality agreement substantiates a reasonable expectation of a
confidential relationship. See, e.g., Sarl, 2013 WL 501783, at *5; Pellerin, 2012 WL 112539, at
*2; Lifewatch, 2010 WL 3909483, at *2. In light of the confidentiality agreement and the nature
of Causey’s work at MiniMed, the court concludes that MiniMed had a confidential
relationship with Causey.
2. Receipt of relevant confidential information
There is also no serious question that Causey received confidential information
concerning Medtronic insulin pumps during the course of his employment. And, to be clear, it is
sufficient that Causey received confidential information; it is not necessary for Medtronic to
show that he violated his confidentiality agreement. Lifewatch, 2010 WL 3909483, at *1.
Plaintiffs do not dispute that Causey received confidential information.
Rather, plaintiffs argue that Causey did not receive privileged information, and so he did
not receive any information about Medtronic’s litigation strategy. According to plaintiffs, the
information that Causey received was merely technical information that would be available to
plaintiffs through discovery anyway. Plaintiffs contend that disqualification is warranted only
when the expert has received the other side’s privileged information. This court will not apply
the rule proposed by plaintiffs when the targeted expert is a former employee.
Expert disqualification cases come in two prototypical categories: the so-called sideswitching cases and the former-employee cases. In a side-switching case, a retained nonemployee expert who worked for one side crosses over and goes to work for the other. For
example, in Nikkal Industries, Ltd. v. Salton, Inc., 689 F. Supp. 187 (S.D.N.Y. 1988), the
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plaintiff’s counsel consulted with an expert, Sorenson, for potential engagement, and in the
process provided technical information to Sorenson. The plaintiff ultimately hired another
expert. But then Sorenson signed on as the defendant’s expert, and the plaintiff sought to
disqualify him. The court held that disqualification was not warranted because Sorenson
received only technical non-privileged information. In a side-switching case, it makes sense to
distinguish between factual information and privileged information. See also Hewlett-Packard Co.
v. EMC Corp., 330 F. Supp. 2d 1087 (N.D. Cal. 2004). When the expert is a non-employee
without extensive inside knowledge of the opposing party, disqualification is warranted only if
the expert has privileged information that will not be available through discovery. The two cases
most relied on by plaintiffs, Koch Refining Co. v. Jennifer L. Boudreau M/V, 85 F.3d 1178 (5th Cir.
1996), and Sarl, 2013 WL 501783, present more complicated examples, but they are essentially
variations of this same principle applied to non-employee experts.
Disqualification is more readily granted when the targeted expert is a former employee of
the opposing party. Expert disqualification is generally not decided by bright-line rules, but this
principle comes close to a rule: “[i]n cases where an expert was a former employee and learned
of technical information that relates to the lawsuit, most courts have disqualified the expert.”
Thompson, I.G., L.L.C. v. Edgetech I.G., Inc., No. 11-12839, 2012 WL 3870563, at *5-6 (E.D.
Mich. Sept. 6, 2012); see also Pellerin, 2012 WL 112539; Lifewatch, 2010 WL 3909483. Plaintiffs
have not pointed to any case in which a former employee who was subject to a confidentiality
agreement was not disqualified from serving as an expert against his former employer. Perhaps
disqualification would not be warranted for a low-level employee, or if the information were
only marginally relevant. But this is not such a case: Causey was vice president of research and
development for one of the defendants, and he played an important role in the design and
quality control of the product line at issue in this suit.
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3. Policy considerations
In determining whether disqualification is warranted, courts have considered policy
objectives, including preserving the integrity of the judicial process, ensuring access to expert
witnesses with specialized knowledge, the expert’s interest in pursuing his professional calling,
and the availability of alternatives to the disqualified expert. Koch, 85 F.3d at 1182-83.
The parties offer little on these topics. Plaintiffs contend that there are very few experts
knowledgeable about insulin pump technology, and that it would be difficult for plaintiffs to
find one in the time available. Plaintiffs have provided no support whatsoever for the
proposition that there are few experts on insulin pumps. That proposition is dubious given the
prevalence of diabetes in the United States and the widespread use of insulin pumps. See
Consensus Statement by the American Association of Clinical Endocrinologists/American
College of Endocrinology Insulin Pump Management Task Force. 4 Any undue burden on
plaintiffs will be ameliorated by a new schedule, which will provide plaintiffs with a reasonable
amount of time to engage a new expert.
This is a case in which disqualification preserves the integrity of the judicial process. As a
result of his work for MiniMed, Causey may well have technical information about Medtronic
products, which he could be compelled to provide as a fact witness. His testimony in that
capacity would be open to scrutiny by both sides, and Medtronic could guard against the
disclosure of protected information. But it would be unfair to Medtronic to allow him to serve
as an expert for plaintiffs, which would afford Medtronic no opportunity to protect its privileged
or confidential information. Even if Causey diligently tried to respect his obligations under his
4
Available at https://www.aace.com/files/insulin-pump-management-cs.pdf (last visited April 29,
2015).
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confidentiality agreement, he could implicitly or unconsciously guide plaintiffs’ litigation
strategy on the basis of knowledge that he is contractually barred from disclosing.
B. Estoppel
Plaintiffs also contend that Medtronic is estopped from objecting to their engagement of
Causey because Medtronic has known that Causey had been consulting with “plaintiffs’
attorneys” since 2012. Plaintiffs’ argument fails for two reasons. First, the argument is not
adequately developed in two scant paragraphs. Plaintiffs contend that Medtronic has somehow
induced plaintiffs’ reliance by Medtronic’s failure to object to Causey’s minor participation in an
earlier case, but they do not explain how this meets the elements of estoppel. Any argument that
is insufficiently developed is deemed waived. See United States v. Turcotte, 405 F.3d 515, 536
(7th Cir. 2005).
The second problem with plaintiffs’ estoppel argument is that plaintiffs do not show that
Medtronic was aware that plaintiffs were using Causey as an expert before March 8, 2015. What
plaintiffs show is that attorney Charles R. Houssiere, III, has used Causey as a consultant since
2012. Medtronic was aware in 2012 that Causey was consulting for Houssiere’s clients at the
time (which did not include plaintiffs in this case), but that Medtronic made no effort to stop
Houssiere from using Causey. Dkt. 69. Houssiere’s declaration is decidedly vague about the
nature of the consulting provided by Causey. Houssiere does not state that he was using Causey
as a liability expert, as plaintiffs are in this case. In reply, Medtronic explains that Causey’s
participation was limited to observation of device testing, and that had those cases with
Houssiere not settled early, Medtronic would have objected to Causey’s use as a liability expert.
Dkt. 71-2, at 9-10.
But there is another problem for plaintiffs: they have not shown that Houssiere had
anything to do with this case before the dispute over Causey arose. Houssiere first appeared in
8
this case on March 18, 2015, the same day that defendants filed their motion to disqualify
Causey. Dkt. 54 and Dkt. 57. Thus, even if Medtronic acquiesced to Causey working on
Houssiere’s other cases back in 2012, that fact does not show that Medtronic induced plaintiffs
in this case, or the attorneys actually working on plaintiffs’ case, to do anything.
ORDER
IT IS ORDERED that:
1. The motion by Medtronic and MiniMed, Dkt. 57, is GRANTED. Plaintiffs’ motion
for hearing on the motion to disqualify Causey, Dkt. 70, is DENIED.
2. Plaintiffs’ motion to amend the scheduling order, Dkt. 55, is GRANTED, so that
plaintiffs may have a reasonable time to engage a replacement expert. The motion for
a hearing on this motion, Dkt. 73, is GRANTED, solely to allow for a telephonic
hearing to set a new calendar.
3. Defendants’ motion for leave to file a reply, Dkt. 71, is GRANTED in part, and
DENIED in part. Defendants are instructed to file their submission, Dkt. 71-2, as a
separate entry on the docket.
Entered April 30, 2015.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge
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