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Beller v. Coloplast A/S

United States District Court, D. Nebraska

August 13, 2018

GARY L. BELLER and MARY K. BELLER, husband and wife, Plaintiffs,
v.
COLOPLAST A/S, COLOPLAST CORPORATION, and COLOPLAST MANUFACTURING, U.S. LLC, Defendants.

          ORDER

          Michael D. Nelson United States Magistrate Judge

         This matter is before the Court on Plaintiffs' Motion to Compel Defendants' Discovery Answers (Filing No. 83). The Court will grant the motion, in part.

         BACKGROUND

         Gary 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).

         Plaintiffs' 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).

         Plaintiffs 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.[1](Filing No. 85-2 at p. 12). Coloplast Corp. and Coloplast Manufacturing served their answers, objections, and responses on July 18, 2016.[2] (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).

         Pursuant 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).

         With 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.[3] (Filing No. 67).

         The 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.[4] 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).

         The 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).

         The 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).

         After 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).

         Plaintiffs 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).

         ANALYSIS

         I. Requirements for Filing a Motion to Compel

         This 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).

         In this 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).

         More 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).

         Besides 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.[5] 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.).

         Under 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.[6] 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.”).

         Although 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 responses.

         The 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 motions.”).

         Accordingly, 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 discussed above.

         II. Coloplast A/S's Discovery Responses

         Following 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.[7] (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.

         The 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.[8] 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.

         Under 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 sufficient.

         Plaintiffs 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.

         III. Substantive Rulings

         Federal 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).

         Plaintiffs' 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).

         A. Interrogatories

         After 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 the following:
[] 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 2007/47/EC
[] Regulations promulgated by Health Canada OCE marked by DGM (Notified Body No. 04523)
[] 21 CFR, Part 58, Good Laboratory Practice for Nonclinical Laboratory Studies
[] FDA Guidance for the Preparation of a Premarket Notification Application for a Surgical Mesh
[] AST M F2148
[] U.S. Pharmacopeia

         Court 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.

         INTERROGATORY NO. 2: Identify each component part comprising a Virtue Device, including the manufacturer of each component ...


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