GULLEDGE v. DEPUY ORTHOPAEDICS INC (2023)

ORDER

This action is before the Court on Plaintiff's renewed motion to compel the depositions of Defendants' sales representatives (Doc. 70). The motion has been fully briefed and is ripe for resolution. Upon consideration, Plaintiff's motion is denied.

I. BACKGROUND

Plaintiff Linda Gulledge underwent a right total hip replacement performed by Dr. Milton Wallace on November 26, 2007. (Doc. 1 at 12; Doc. 91 at 2). The surgery entailed Dr. Wallace implanting a Pinnacle device with a metal liner (“metal-on-metal Pinnacle hip”) in place of Plaintiff's right hip joint. (Doc. 1 at 12). In 2012, Plaintiff filed suit against Defendants DePuy Orthopaedics, Inc., DePuy, Inc., DePuy International Limited, Johnson & Johnson, Johnson & Johnson Services, Inc., and Johnson & Johnson International in the Northern District of Texas as part of the Pinnacle hip implant Multi District Litigation (MDL). (Doc. 1). According to the MDL Plaintiffs, Defendants have known for years that implantation of their Pinnacle device and other metal-on-metal total hip replacement systems results in pain, metallosis, biologic toxicity, and an early and high failure rate, yet they concealed this information, and Plaintiffs were injured as a result. (See id. at 8-9).

While this case was pending in the MDL, the MDL Plaintiffs sought to depose Pinnacle sales representatives. According to the Plaintiffs, Defendants' sales representatives were generally present during each Pinnacle hip replacement and would see where the device caused significant harm to the patient, hear the surgeon discuss his or her findings during the surgery, and report this information to Defendants, who in turn were obligated to report these findings about their products to the FDA. (Doc. 70-2 at 7-8). The MDL Plaintiffs argued that this information went directly to their fraudulent concealment claims. (Id.).

Defendants objected to the requested depositions on the ground that information about what the sales representatives told treating doctors about the Pinnacle device could be obtained by questioning the treating doctors themselves. (Doc. 70-1 at 2). Defendants argued that only if any of the treating doctors testified that they either relied on something communicated by a sales representative or were otherwise affected by a sales representative's presence in the operating room should the sales representatives be deposed. (Id. at 7). Defendants assert, and Plaintiff does not dispute, that while this case was pending before the MDL, MDL Special Master James Stanton deferred any consideration of the appropriateness of sales representative depositions until after the doctors were deposed. (Doc. 93 at 5). When the MDL panel transferred the instant action to this Court on December 30, 2022, the issue regarding deposing sales representatives was unresolved.

Following the transfer of the instant action to this Court, Plaintiff Gulledge renewed the request to depose sales representatives. (Doc 70). In her latest filing, Plaintiff seeks to depose the sales representatives who were present for her implant surgery in 2007 and her revision surgery in 2019. (Doc. 91 at 6-7). Plaintiff asserts that now that her implanting surgeons, Dr. Wallace and Dr. Robert Baird, have both been deposed, Defendants' assertions that the depositions of the sales representatives should be delayed until after the doctors' deposition is moot. (Id. at 2). Plaintiff also asserts that prior testimony in the MDL case establishes that sales representatives were typically present in the operating room for the replacement surgeries, and that information about what the sales representatives who were present for Plaintiff Gulledge's surgeries saw “is not duplicative of any previous testimony from any source.” (Id. at 3). Plaintiff further asserts that the sales representatives would have relevant knowledge regarding the training and instructions provided by Defendants in relation to reporting revision surgeries. (Id. at 5). According to Plaintiff, Andrew Ekdahl, who started as a sales representative for Defendants and later worked as Vice-President of Marketing for DePuy hips and then as President of DePuy, testified in an MDL trial that sales representatives are most likely present during a surgical procedure. (Id. at 2-3). Plaintiff also points to questioning of Ekdahl about a slide that purportedly shows increasing complaints about the Pinnacle device and reflects that “[r]etrain[ing] the sales force not to report every revision” was an option to be considered. (Id. at 4). Relying on that questioning, Plaintiff asserts that the sales representatives “are eyewitnesses and have individual and relevant knowledge as to the training and instructions provided by Defendants in relation to reporting revision surgeries.” (Id. at 5).

Defendants continue to oppose Plaintiff's request to depose the sales representatives. (See Doc. 93). It appears that sales representative Edmond Dyas was present during Plaintiff's initial implant surgery performed by Dr. Wallace in 2007, and Bryan Megginson was present during Plaintiff's revision surgery performed by Dr. Baird in 2019. (Doc. 91 at 6-7; Docs. 91-6, 91-7). Defendants contend that neither Dr. Wallace nor Dr. Baird testified that a sales representative was present during Plaintiff's surgeries, let alone that the sales representatives provided them with any Pinnacle-related information in connection with the procedures. (Doc. 93 at 2). Defendants also assert that any information actually provided by the sales representatives would, at most, have pertained to the DePuy-generated materials that were already provided by Defendants during the seven years of the Pinnacle MDL proceeding. (Id.). According to Defendants, they produced millions of pages of documents pertaining to the Pinnancle hip implant, and more than forty defense witnesses were deposed in either an individual or corporate representative capacity regarding a number of issues including the sales and marketing of the Pinnacle hip implant. (Id. at 3). Defendants further assert that courts that have dealt with this issue have routinely found that these sales representatives are peripheral witnesses whose testimony is irrelevant absent a showing that the representatives actually “influence[d]” the prescribing decision-making process of the plaintiff's doctor. (Id. at 6).

II. STANDARD OF REVIEW

Discovery is governed by the principles of relevance and proportionality, as Federal Rule of Civil Procedure 26(b)(1) explains:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

The scope of discovery is broad, allowing each party to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ․” Id. The purpose of broad discovery is to empower parties “to obtain the fullest possible knowledge of the issues and facts before trial.” Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In turn, trial becomes “less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir. 1978)¹ (quoting United States v. Proctor & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958)).

“At the same time, ‘discovery, like all matters of procedure, has ultimate and necessary boundaries.’ ” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978) (quoting Hickman, 329 U.S. at 507, 67 S.Ct. 385). Discovery of a “matter not ‘reasonably calculated to lead to the discovery of admissible evidence’ is not within the scope of Rule 26(b)(1).” Id. at 351-52, 98 S.Ct. 2380. Further, Rule 26 requires that discovery be “proportional to the needs of the case ․” Fed. R. Civ. P. 26(b)(1). A court must weigh “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. “Where a significant amount of discovery has been obtained, and it appears that further discovery would not be helpful in resolving the issues, a request for further discovery is properly denied.” Rollins v. Cone Distrib., Inc., 710 F. App'x 814, 819 (11th Cir. 2017) (per curiam) (quoting Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003)). Ultimately, the Court has “broad discretion to compel or deny discovery.” United States v. Cuya, 964 F.3d 969, 970 (11th Cir. 2020).

III. DISCUSSION

As noted supra, this case was a part of the MDL Pinnacle hip proceedings, and there is no dispute that the MDL proceedings generated a voluminous amount of discovery pertaining to the Pinnacle hip implant, including research and development, manufacturing, marketing, sales, product communications, etc. During the MDL proceedings, the Special Master deferred the issue of whether testimony from Pinnacle sales representatives was relevant until after the treating doctors could be deposed. In the only reported case cited by the parties, the court rejected the plaintiff's assertion that the sales representatives had relevant information because they had direct contact with the plaintiff's surgeons regarding the device components and at least one of them was present at each of the plaintiff's surgeries. See Baldwin v. Depuy Orthopaedics, Inc., 2023 U.S. Dist. LEXIS 54471, at *4-5 (N.D. Ill Mar. 30, 2023). The court noted that the plaintiff's assertion was refuted by the surgeon, who testified that he did not make clinical decisions for patients based on marketing material from device manufacturers, and that he could not recall any specific information about the Pinnacle device that he reviewed and relied on in deciding to use the device for the plaintiff. Id. at *4. The court noted that even if the doctor had relied on marketing materials in choosing the Pinnacle device for the plaintiff, that information came from the corporate defendants, who had already produced voluminious documents and witnesses for depositions. Id. at *4-5. Additionally, the court rejected the notion that the mere fact that the sales representatives were present for the implant surgeries made their testimony relevant. Id. at *5. According to the court, in order for the testimony to be relevant, the plaintiff needed to establish a nexus between the sales representatives' presence at the surgeries and the plaintiff's claims. Id. The court concluded that the plaintiff had failed to establish the required nexus because the testimony of the plaintiff's two surgeons did not suggest that the sales representatives who attended the plaintiff's surgery had any knowledge about the plaintiff's claims. Id.

In the case at hand, Dr. Wallace and Dr. Baird both testified that the primary purpose of having a sales representative present while a surgery is being performed is to ensure that medical devices are available as needed during surgery. (Doc. 91-4 at 4; Doc. 91-5 at 10-11; Doc. 93-4 at 12-13; Doc. 93-7 at 3-4). They also testified that sales representatives sometimes provide useful information about a particular device, but they don't have any clinical involvement, and that the knowledge level among sales representatives varies greatly. (Doc. 91-5 at 12; Doc. 93-4 at 5, 11-16; Doc. 93-7 at 3-5). The doctors also testified that they would expect hip device manufacturers to provide accurate and complete information about risks associated with their devices; however, they do their own due diligence with respect to the use of implant devices, including reading publications, attending courses, and consulting with peers. (Doc. 91-4 at 3; Doc. 93-4 at 6, 15-16; Doc. 93-7 at 4-5).

Having reviewed the excerpts from Dr. Wallace's and Dr. Baird's depositions, there is nothing in the excerpts that suggests that the sales representatives were in a better position than these operating surgeons to observe Plaintiff's condition or the condition of any devices implanted or removed during Plaintiff's surgeries. Further, there is nothing in the deposition excerpts that reflects that in conducting Plaintiff's surgeries, either Dr. Wallace or Dr. Baird actually relied upon information provided by the sales representatives who were present at the surgeries. This, coupled with the fact that voluminious discovery was generated during the MDL proceedings regarding the Pinnacle hip implant, including research and development, manufacturing, marketing, sales, and product communications, and the surgeons' testimony that they performed their own due diligence, including reading publications, attending courses, and consulting with peers regarding the use of implant devices, leads the undersigned to conclude that Plaintiff has failed to demonstrate that the requested sales representative depositions are relevant. Accordingly, Plaintiff's request to depose the sales representatives is DENIED.

ORDERED this 17th day of October, 2023.

FOOTNOTES

1.   In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE