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Webb v. Ethicon Endo-Surgery, Inc.

United States District Court, D. Minnesota

January 26, 2015

SUSAN WEBB, Plaintiff,
v.
ETHICON ENDO-SURGERY, INC., Defendant.

William L. Tilton, Michael J. Gross, George R. Dunn, and Grace Davies, TILTON & DUNN, P.L.L.P., for plaintiff.

David R. Noteware, Janelle L. Davis, and Timothy E. Hudson, THOMPSON & KNIGHT LLP, Dallas, TX 75201, and Kim M. Schmid and Sheryl A. Bjork, BOWMAN & BROOKE LLP, for defendant.

MEMORANDUM OPINION AND ORDER AFFIRMING ORDERS OF MAGISTRATE JUDGE

JOHN R. TUNHEIM, District Judge.

Plaintiff Susan Webb asserts claims for strict products liability, negligence with respect to manufacturing, and breach of warranty of merchantability claims against Ethicon Endo-Surgery, Inc. ("Ethicon"). Ethicon moves for a protective order and to quash notices, and Webb moves to compel discovery requests and for leave to propound additional discovery requests. On August 8, 2014, United States Magistrate Judge Jeanne J. Graham issued a discovery order ("the August 8 order") granting in part and denying in part both motions. Specifically, the Magistrate Judge granted Webb's request as to all of the staplers in the TX stapler line and ordered Ethicon to respond to the four additional document requests served by Webb. The Magistrate Judge also granted Ethicon's request that the depositions of its corporate agents under Rule 30(b)(6) take place in Cincinnati, as opposed to St. Paul, which Webb requested. Ethicon subsequently requested that the Magistrate Judge clarify and reconsider the August 8 order as to Webb's four additional document requests. The Magistrate Judge issued a short order ("August 18 order") denying Ethicon's request.

This matter is now before the Court on both parties' objections to the August 8 order and Ethicon's objection to the August 18 order. Because the Court finds that the Magistrate Judge's orders were not clearly erroneous, the Court will overrule the parties' objections.

BACKGROUND[1]

I. FACTUAL HISTORY

On July 29, 2009, Webb underwent surgery at United Hospital in St. Paul, Minnesota, to have an esophageal tumor removed. (Aff. of Michael Gross ("Gross Aff."), Ex. 5 (Aff. of William M. Rupp. ("Rupp Aff.")) ¶¶ 3, 6-7, May 19, 2014, Docket No. 42; Compl. ¶¶ 5-6, July 19, 2013, Docket No. 1-1.) Dr. William Rupp was the lead surgeon during Webb's procedure. (Rupp Aff. ¶ 7.) To close the internal tissue incision after he removed the tumor, Dr. Rupp used a TX60B disposable surgical stapler, manufactured by Ethicon. ( Id. ¶ 10; Gross Aff., Ex. 4.) Webb alleges that the stapler used in her surgery failed to properly fire, forcing Dr. Rupp to hand stitch a suture line to close the incision. (Compl. ¶¶ 9-12, 29-31; Rupp Aff. ¶¶ 22-29.) Webb later developed a postoperative leak at the surgical site, leading to hospitalization, an additional surgery, and persistent and permanent health effects. (Compl. ¶¶ 33-36; Rupp Aff. ¶¶ 29, 31.)

II. AUGUST 8 AND AUGUST 18 DISCOVERY ORDERS

The parties have now conducted extensive discovery in this case and seek clarification from the Court on several remaining discovery matters. In particular, the parties dispute the appropriate number and scope of document requests and the location of the corporate depositions of Ethicon's officers and representatives. The August 8 order and August 18 order address those disputes. (Order ("August 8 Order"), Aug. 8, 2014, Docket No. 144; Order ("August 18 Order"), Aug. 18, 2014, Docket No. 150.)

A. Number and Scope of Document Requests

Webb served Ethicon with four document requests beyond the forty-request limit set by the Pretrial Scheduling Order in this case. (Pl.'s Mem. in Supp. of Mot. to Compel Disc. Resps. & Grant Leave to Propound Additional Doc. Reqs. ("Pl.'s Mem. Supporting Mot. to Compel") at 33-38, July 10, 2014, Docket No. 118; Pretrial Scheduling Order at 1, Sept. 5, 2013, Docket No. 10.) The additional requests are as follows:

Document Request No. 40:
a. All Premarket Notification Applications which mention any Ethicon Proximate Linear Staplers, pursuant to section 510(k) of the U.S. Food, Drug and Cosmetic Act and 21 C.F.R. §807.81, and all supplements or revisions to any related Premarket Notification;
b. All Device History Record documents relating to Ethicon Proximate Linear Staplers, as defined by 21 C.F.R. §803.3(i) and required by 21 C.F.R. §820.184(a) through (f);
c. All documents relating to the Quality System Record for Ethicon Proximate Linear Staplers as required by 21 C.F.R. §820.186;
d. Any and all documents related to any Complaint File as defined by 21 C.F.R. §820.3(b) and required by 21 C.F.R. ...

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