United States District Court, D. Nebraska
GARY L. BELLER and MARY K. BELLER, husband and wife, Plaintiffs,
COLOPLAST A/S, COLOPLAST CORPORATION, and COLOPLAST MANUFACTURING, U.S. LLC, Defendants.
Michael D. Nelson United States Magistrate Judge
matter is before the Court on Plaintiffs' Motion to
Compel Defendants' Discovery Answers (Filing No. 83). The
Court will grant the motion, in part.
and Mary Beller filed this products liability and negligence
action against the Coloplast defendants on January 11, 2016.
(Filing No. 1). Plaintiffs allege that on January 24, 2014,
Gary underwent surgery to implant Coloplast's
“Virtue male sling device” to treat his urinary
incontinence, and that since the surgery, Gary has
experienced scrotum and groin pain, pain while urinating,
sexual side effects, and worsening incontinence. (Filing No.
1 at pp. 2-4). Plaintiffs assert that Defendants first
started developing the Virtue product in approximately
February 2008, and over the next three years, sold over 1,
000 devices. Plaintiffs allege Defendants made at least two
design changes during that time. (Filing No. 84 at p. 2).
Complaint contains seven claims against the defendants for
(1) negligence, (2) Strict Liability (Design Defect), (3)
Strict Liability (Manufacturing Defect), (4) Strict Liability
(Failure to Warn), (5) Breach of Express Warranty, (6) Breach
of Implied Warranty, and (7) Loss of Consortium. For their
negligence claim, Plaintiffs allege Defendants breached their
duty of care in numerous ways, including: failing to conduct
sufficient testing and studies to ensure the safety and
efficacy of the Virtue; failing to warn Gary or his health
care providers of the risk and side effects presented by the
Virtue; failing to provide adequate instructions regarding
certain health and safety precautions that Gary and his
health care providers would have observed had such
instructions been provided; and failing to develop and
distribute appropriate procedures for removal of the Virtue
by Gary's health care providers. (Filing No. 1).
served Defendants Coloplast Corp. and Coloplast Manufacturing
with a First Set of Interrogatories and First Set of Requests
for Production of Documents on May 18, 2016.(Filing No. 85-2
at p. 12). Coloplast Corp. and Coloplast Manufacturing served
their answers, objections, and responses on July 18,
2016. (Filing No. 85-4 at p. 18, Filing No. 85-5
at p. 51). Defendants continued to produce documents over the
next several months. On January 3, 2017, counsel for
Plaintiffs sent a letter to defense counsel outlining
Plaintiff's issues with Defendants' answers to
interrogatories and method of document production. The
parties were unable to resolve their dispute, and Plaintiffs
filed a motion to compel on March 15, 2017. (Filing No. 37).
Plaintiffs sought substantive answers to Interrogatory Nos.
4, 13, and 19, and requested that Defendants be required to
identify how each document they produced was responsive to
each Request. (Filing No. 38).
to the Defendants' request (and with agreement of
Plaintiffs' counsel), Magistrate Judge F.A. Gossett held
an informal discovery conference regarding the motion to
compel on March 30, 2017. The parties represented to Judge
Gossett that the issues raised regarding Interrogatory Nos.
4, 13, and 19 were either moot or resolved. The issue
regarding Defendants' identification of responsive
documents was not resolved, and Judge Gossett permitted
briefing to continue on the motion to compel. (Filing No.
49). Following the conference, the parties reached an
agreement on the issue of document production, and the
Plaintiffs withdrew their motion to compel on April 13, 2017.
(Filing No. 50; Filing No. 52).
the written discovery issues apparently resolved, the parties
continued with scheduling depositions, preparing expert
reports, and other discovery. (Filing Nos. 62-65, 68-72). The
parties also attended mediation on June 28, 2017, which was
unsuccessful, but did not request that the Court stay the
case. (Filing No. 66). On October 17, 2017, the Court entered
a second amended final progression order extending case
progression deadlines, in accordance with the parties'
agreed upon motion. (Filing No. 66; Filing No. 67).
The amended final progression order set February 5, 2018, as
the deadline to complete written discovery, and March 5,
2018, as the deadline to file discovery motions as to matters
ripe for decision. (Filing No. 67).
current dispute concerns the same set of interrogatories and
requests for production of documents that Plaintiffs first
served on Coloplast Corp. and Coloplast Manufacturing on May
18, 2016. On February 27, 2018, Plaintiffs'
counsel sent defense counsel a letter identifying multiple
deficiencies with the Defendants' July 18, 2016, answers
to interrogatories and responses to requests for production
of documents. (Filing No. 85-14). In Plaintiffs' February
27, 2018, letter, they informed Defendants that answers to
Interrogatory Nos. 1-4, 7, 9, 12, 13, and 15-16 (mislabeled
as 18-19) were deficient, and requested supplemental
responses to Request for Production Nos. 10, 16-35, 37-38,
55-57, and 63. Plaintiffs also requested that Coloplast A/S
provide answers and responses to the discovery requests
within ten days. Plaintiffs demanded Defendants' response
to the letter within two business days. (Filing No. 85-14).
next day, on February 28, 2018, counsel for Plaintiffs
contacted the chambers of the undersigned magistrate judge to
schedule a telephone conference to resolve the dispute prior
to filing a motion to compel, as the March 5, 2018, deadline
for filing motions to compel was fast approaching. (Filing
No. 73; Filing No. 75). In advance of the conference, on
March 2, 2018, Plaintiffs submitted their statement of the
discovery dispute to the undersigned magistrate judge by
email, identifying additional deficient answers to
interrogatories and responses to requests for production of
documents to those previously identified in their February
27, 2018, letter to the Defendants: Interrogatory No. 10, and
Request for Production Nos. 3, 5, 7, 12, 15, 36, 53, 58, and
61-62. (Compare Filing No. 85-14 with Filing No.
85-15 at pp. 4-8).
Court held the conference on March 5, 2018. Following that
conference, the Court ordered defendant Coloplast A/S to
provide responses to Plaintiffs' discovery requests and
allowed the other defendants to supplement their responses as
necessary on or before March 30, 2018. (Filing No. 77).
certain supplementation by Defendants on March 29, 2018, and
email exchanges between the parties, they met and conferred
by telephone on April 4, 2018, to discuss the ongoing
dispute. (Filing No. 85-1 at p. 6). According to Plaintiffs,
during the meet and confer, Plaintiffs requested that
Defendants withdraw all objections and supplement answers to
Interrogatory Nos. 1-4, 7-9, 12, 13, and 15-16, and to
withdraw objections and supplement Request for Production
Nos. 2, 5, 7, 9, 10-13, 15-38, 41-45, 47, and 54-64. (Filing
No. 85-1 at pp. 6-7, ¶ 36).
thereafter filed the instant motion to compel on April 9,
2018, requesting that the Court order Defendants to: (1)
“verify under oath all of Defendants' answers and
supplemental answers to Plaintiffs'
Interrogatories;” (2) have Defendant Coloplast A/S
serve supplemental answers to Plaintiffs' Interrogatories
and Requests for Production in which Coloplast A/S separately
repeats and answers each of those discovery requests; (3)
withdraw all objections to Plaintiffs' Interrogatory Nos.
1-4, 7, 8, and 12-15 and to provide a supplemental answer to
each of those interrogatories, without objection; (4)
withdraw all of Defendants' objections to Plaintiffs'
Request for Production Nos. 2, 5, 7, 9, 11-13, 16-18, 20-27,
29-38, 41-44, and 57-64 and to provide a supplemental
responses to each of those requests, without objection, that
fully responds to those requests; (5) disclose to Plaintiffs
the search terms, date ranges, custodians, and custodial
locations (e.g., hard drives, networks, servers,
etc.) that Defendants searched for ESI) that Defendants used
to search for ESI; and (6) perform a proper ESI search using
search terms, date ranges, and custodial locations upon which
Plaintiffs agree. (Filing No. 83).
Requirements for Filing a Motion to Compel
court imposes at least two requirements before a party may
file a motion to compel: (1) the moving party must first
contact the chambers of the assigned magistrate judge to
schedule a conference, and (2) the moving party must engage
in “personal consultation” with opposing parties
in a sincere attempt to resolve the differences. See
Filing No. 67 at p. 2; NECivR 7.1(i). The
local rule defines “personal consultation” as
“person-to-person conversation, either in person or on
the telephone.” Letters and emails are only a
substitute for personal consultation when the moving party
shows that “person-to-person conversation was attempted
by the moving party and thwarted by the nonmoving
party.” NECivR 7.1(i). The informal telephone
conference with the assigned magistrate judge is not a
substitute for the personal consultation required by NECivR
7.1(i). And, when filing a motion to compel, the
motion “must include a certification that the movant
has in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an
effort to obtain it without court action.” Fed. R.
Civ. P. 37(a)(1).
case, defendants Coloplast Corp. and Coloplast Manufacturing
first served their answers to interrogatories and responses
to requests for production of documents on July 18, 2016.
(Filing No. 85-14). At that time, Plaintiffs identified
certain issues with the Defendants' answers, responses,
and production of documents, culminating in Plaintiffs filing
a motion to compel on March 15, 2017. (Filing No. 37).
Plaintiffs ultimately withdrew that motion to compel on April
13, 2017, after reaching an agreement with the Defendants on
those issues. (Filing No. 52).
than ten months passed between the date Plaintiffs withdrew
their motion to compel and February 27, 2018, the date
Plaintiffs sent a letter to the defendants identifying, for
the first time, a litany of issues with the Defendants'
July 18, 2016, discovery responses and subsequent document
production. At the time Plaintiffs sent this letter, the
deadline for parties to complete written discovery had
expired, and the deadline for filing motions to compel was
less than a week away. (Filing No. 67). Three days after
sending their initial letter to Defendants, Plaintiffs
identified several more deficient discovery responses in
their letter to the Court that Plaintiffs had not identified
in their letter to the Defendants. (Compare Filing
No. 85-14 with Filing No. 85-15 at pp. 4-8).
the conference with the court, the only “personal
consultation” with defense counsel that Plaintiffs
identify took place on April 4, 2018 (and in that meet and
confer, Plaintiffs identified additional issues than those
they previously had identified in either their February 27,
2018, letter to Defendants, or their letter to the Court).
(Compare Filing No. 85-1 at pp. 6-7 ¶ 36
with Filing No. 85-14 and Filing No.
85-15). The rest of Plaintiffs' communications with
Defendants took place by letter or email, only one of which
was sent to Defendants prior to the expiration of the motion
to compel deadline of March 5, 2018. Before the April 4, 2018,
phone call, Plaintiffs offered no showing that they attempted
any person-to-person conversation that was thwarted by the
Defendants, although they had ample time to do so. See NECivR
7.1(i); see also Sampson v. Schenck, No.
8:07CV155, 2010 WL 2737050, at *3 (D. Neb. July 9,
2010)(Thalken, J.)(concluding e-mail correspondence was not
“personal consultation” as defined by the local
rule “because the plaintiff failed to show that a prior
person-to-person conversation occurred or was even attempted
by the plaintiff yet thwarted by the defendants.”).
Failure to show personal consultation as required by
NECivR7.1(i) is grounds alone to deny a motion to
compel. Shanghai Foretex Fashion Co. v. Wes & Willy,
LLC, No. 8:14CV106, 2014 WL 12605521, at *2 (D. Neb.
July 29, 2014)(Zwart, J.).
the circumstances, the Court will consider Plaintiffs'
motion to compel only to the extent Plaintiffs raised those
issues in their February 27, 2018, letter to the Defendants.
The Court will liberally treat the letter as Plaintiffs'
“sincere attempt” to obtain the disputed
discovery before the motion to compel deadline, even though
Plaintiffs called to request a conference with the Court
before Defendants could respond. Besides that letter,
Plaintiffs offered no evidence of “sincere
attempts” through “personal consultation”
to obtain the disputed discovery without court action prior
to the March 5, 2018, motion to compel deadline, and offered
no reason why they could not have raised these issues
earlier. See Heim v. BNSF Ry. Co., No.
8:13CV369, 2014 WL 6949044, at *5 (D. Neb. Dec. 8,
2014)(Zwart, J.)(denying motion to compel as to a request for
production of documents because “plaintiff has failed
to meet his burden of showing he made ‘sincere
attempts' through ‘personal consultation' to
obtain the disputed discovery.”).
Plaintiffs raised issues with additional discovery responses
in its letter to the Court dated March 2, 2018, Plaintiffs
did not attempt to meet and confer with Defendants regarding
those responses prior to bringing them before the Court. To
the extent Plaintiffs raised further issues during the
parties' April 4, 2018, meet and confer, such issues were
ripe for over a year and could have been raised by Plaintiffs
in their February 27, 2018, letter, or at any point prior to
the motion to compel deadline of March 5, 2018. Plaintiffs
offered no reason for the Court to extend the scheduling
order deadline to accommodate Plaintiffs' late attempt to
procure substantial supplementation of Defendants'
discovery responses more than ten months after withdrawing
their first motion to compel regarding the same discovery
Court's limitation of Plaintiffs' motion is
appropriate considering that written discovery had been
closed since February 5, 2018; Plaintiffs knew what the court
requires before a party may file a motion to compel;
Plaintiffs knew the motion to compel deadline was March 5,
2018, but waited until February 27, 2018, to first raise
multiple new issues with the Defendants' July 2016
discovery responses; Plaintiffs already filed a motion to
compel regarding the same discovery responses in March 2017;
and the prejudice to Defendants by permitting a wholesale
reopening of disputes concerning discovery responses that
Defendants reasonably believed the parties had resolved in
April 2017. See Klein v. TD Ameritrade Holding
Corp., No. 8:14CV396, 2017 WL1316944, at *2 (D. Neb.
Apr. 7, 2017)(citing Bialas v. Greyhound Lines,
Inc., 59 F.3d 759, 764 (8th Cir. 1995))(“A
magistrate judge is afforded broad discretion in the
resolution of nondispositive discovery disputes.”);
Desert Orchid Partners, L.L.C. v. Transaction Sys.
Architects, Inc., 237 F.R.D. 215, 218 (D. Neb.
2006)(citing Pavlik v. Cargill, Inc., 9 F.3d 710,
714 (8th Cir. 1993))(“District courts have broad
discretion to limit discovery and decide discovery
the Court will only consider Plaintiffs' motion to compel
to the extent Plaintiffs presented those issues to Defendants
in their February 27, 2018, letter. This includes
Plaintiffs' request that Defendants supplement their
answers to Interrogatory Nos. 1-4, 7, 12, 13, and 15, and to
supplement responses to Request for Production of Document
Nos. 16-18, 20-27, 29-35, 37-38, 57, and 63.
(Compare Filing No. 85-14 with Filing No. 83). The
Court will also consider the issue of Coloplast A/S's
answers and responses that adopted the objections and answers
of Coloplast Corp. and Coloplast Manufacturing. Finally, the
Court will consider any agreements or stipulations that
Defendants have made with Plaintiffs regarding
supplementation of outstanding discovery responses. The
remainder of Plaintiffs' motion is denied for the reasons
Coloplast A/S's Discovery Responses
the telephone conference with the parties on March 5, 2018,
the Court ordered Coloplast A/S to provide responses to
Plaintiffs' discovery requests. During the telephone
conference, defense counsel indicated this supplementation
may be in the form of adopting the answers and responses of
Coloplast Corp. and Coloplast Manufacturing, which is what
Coloplast A/S ultimately did. (Filing No. 85-7; Filing No.
87-8). Plaintiffs now seek an order compelling Coloplast A/S
to serve supplemental answers and responses that separately
repeat and answer each and every discovery request.
issue with Coloplast A/S's responses to discovery is not
straightforward. At the time Plaintiffs served Coloplast
Corp. and Coloplast Manufacturing with the First Set of
Interrogatories and First Set of Requests for Production of
Documents on May 18, 2016, Coloplast A/S, a foreign
corporation with its principal place of business in Denmark,
appears to not yet have been served with process, and had not
yet filed a responsive pleading to the
complaint. According to Plaintiffs' proof of
service of process filed on July 6, 2016, the Ministry of
Justice of Denmark accepted service on behalf of Coloplast
A/S on May 31, 2016, two weeks after Plaintiffs served their
discovery requests. (Filing No. 26). Coloplast A/S thereafter
filed its answer to the complaint on July 26, 2016, after the
other Coloplast defendants had already responded to
Plaintiffs' discovery requests. And when Coloplast Corp.
and Coloplast Manufacturing served their responses to
discovery on July 18, 2016, they objected to Plaintiffs'
interrogatories and requests to the extent that they sought
information from Coloplast A/S, and stated that Coloplast
Corp. and Coloplast Manufacturing were the only two
respondents to the discovery requests. (Filing No. 85-4 at p.
1; Filing No. 85-5 at p. 1). It is not clear to the Court if
Plaintiffs re-served Coloplast A/S with the discovery
requests after Coloplast A/S filed its answer to the
complaint, and thus it is equally unclear at what point, if
any, Coloplast A/S was required to respond to those requests.
Additionally, Coloplast A/S's non-response to
Plaintiffs' discovery requests would have been apparent
to Plaintiffs at the time they filed their first motion to
compel in March 2017.
the circumstances, the Court will deny Plaintiffs'
request for Coloplast A/S to serve supplemental answers and
responses that separately repeat and answer each and every
discovery request, which at this stage of the proceedings
would serve no real purpose. Coloplast A/S's adoption of
the other Coloplast defendants' answers and responses is
further request that the Court compel Defendants to verify
under oath all answers and supplemental answers to
Interrogatories as required by Fed. R. Civ. P.
33(b). Defendants represent they served supplemental
answers on April 20, 2018, with signed verification, and the
Court agrees that it serves no purpose to order Coloplast to
verify the originally served interrogatory answers, so long
as the supplemental answers contained the signed
verification. (Filing No. 89 at p. 7). Accordingly, this
request of the Plaintiffs is denied.
Rule of Civil Procedure 33 provides, “An
interrogatory may relate to any matter that may be inquired
into under Rule 26(b).” Fed. R. Civ. P.
33(a)(2). “Each interrogatory must, to the extent
it is not objected to, be answered separately and fully in
writing under oath.” Fed. R. Civ. P. 33(b)(3).
motion requests an order compelling Defendants to supplement
eleven of their interrogatory answers (eight of which were
raised in their February 27, 2018, letter) and forty-eight
requests for production of documents (twenty-two of which
were raised in their February 27, 2018, letter).
(Compare Filing No. 85-14 with Filing No. 83).
review of Defendants' supplemental answers (Filing No.
90-7) and the parties' briefs, the court makes the
following rulings regarding Plaintiffs' motion to compel
supplemental answers to interrogatories:
INTERROGATORY NO. 1: Identify the specific
provision(s) of each governmental or industry regulation,
standard, guideline, recommendation, standard practice, or
custom that You contend was applicable to the design,
manufacture, performance, testing, certification, or safety
of the Virtue Device at issue at the time the Product left
the Defendants' control.
Defendants objected to this interrogatory then answered:
Subject to the foregoing objections, Coloplast responds that
the Virtue Device is a Class II device regulated in the
United States by the Food and Drug Administration (FDA). The
Virtue's regulatory history has been produced to the
Plaintiffs. The Virtue received initial clearance by FDA on
October 17, 2008.Coloplast submitted three Special 510(k)
applications that the FDA cleared on May 7, 2009; June 3,
2010; and August 17, 2011 respectively. A traditional 510(k)
for changes to the Virtue-including a “dimensional
decrease of the central mesh body at its narrow portion and
other minor dimensional changes” and the
“addition of knots near the distal end of each
suture”-received pre-market clearance on February 14,
2012. The Virtue Device is subject to the applicable
regulations and standards related to Class II devices.
Regulations that may apply outside the Unites States are not
relevant to this suit.
Coloplast further supplements its response by stating that
Virtue is subject to standards, including but not limited to
 ISO 10993-1 and many standards related thereto
 ISO 14971
 MEDDEV 2.7.1 (December 2009) Evaluation of Clinical Data:
A Guide for Manufacturers and Modified Bodies
 Medical Device Directive 93/42/ECC as amended by Directive
 Regulations promulgated by Health Canada OCE marked by DGM
(Notified Body No. 04523)
 21 CFR, Part 58, Good Laboratory Practice for Nonclinical
 FDA Guidance for the Preparation of a Premarket
Notification Application for a Surgical Mesh
 AST M F2148
 U.S. Pharmacopeia
ruling: Defendants have adequately answered the
interrogatory by providing Plaintiffs with the regulations
they contend were applicable to the Virtue Device, and will
not be compelled to supplement this answer further.
NO. 2: Identify each component part comprising a
Virtue Device, including the manufacturer of each component