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Williams v. Biomet Inc.

United States District Court, N.D. Indiana, South Bend Division

November 15, 2019

BIOMET, INC., et al. Defendants Plaintiff Discovery Request Biomet Objection Ruling on Motion to Compel


          Robert L. Miller, Jr. Judge

         Annette Williams sued Biomet in the District of Utah, pursuing state law tort, contract, and consumer law claims after she underwent revision surgery due to problems with her M2a hip implant. The Judicial Panel on Multidistrict Litigation transferred her case to this court's Biomet MDL docket, MDL-2391. [Doc. No. 7]. Ms. Williams has moved to compel Biomet to respond to 36 interrogatories and requests for admissions to which Biomet has objected. I heard argument on the motion to compel (and for sanctions) on August 22.

         The parties seem to agree on what has happened procedurally. Ms. Williams provided Biomet with her Plaintiff Fact Sheet in May 2018. Case-specific discovery for the group that includes this case opened in November 2018. The parties deposed the implanting surgeon in February 2019, and Ms. Williams served her interrogatories and requests for production on Biomet in March. In April, Biomet served on Ms. Williams the Defendant Fact Sheet (the Case Management Order called for service in September 2018), a complaint file containing any documents in Biomet's custody related to Ms. Williams or her surgery (manufacturing records for Ms. Williams' device; Biomet's risk management analysis; and Biomet's complaint handling and adverse event reporting to the FDA regarding Ms. Williams's surgeries), notice that Biomet didn't have a relationship with Ms. Williams's surgeon (which would have required production of a surgeon file), and responses.

         In May, the parties chose dates for depositions of Ms. Williams, the sales representative, and Ms. Williams's revising surgeon. Ms. Williams refused to go forward with the pending depositions due to the discovery dispute. She filed her motion to compel in June, after meet-and-confer efforts collapsed. Case-specific discovery in this case's group closed in July.

Unless otherwise limited by court order . . . [p]arties 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.

Fed. R. Civ. P. 26(b)(1). A party may move to compel discovery if the opposing party “fails to answer an interrogatory submitted under Rule 33[, ] . . . fails to produce documents . . . as requested under Rule 34[, ]” or provides an evasive or incomplete answer or response. Fed.R.Civ.P. 37(a)(3)-(4).

         “The burden rests upon the objecting party to show why a particular discovery request is improper, ” Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006) citing Rubin v. Islamic Republic of Iran, 349 F.Supp.2d 1108, 1111 (N.D. Ill. 2004)), and that showing must be made with specificity. Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009) (citing Graham v. Casey's General Stores, 206 F.R.D. 251, 254 (S.D. Ind. 2002)). A court deciding whether to limit discovery should “consider the totality of the circumstances, weighing the value of the material sought against the burden of providing it, and taking into account society's interest in furthering the truthseeking function in the particular case before the court.” Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (quoting Rowlin v. Alabama, 200 F.R.D. 459, 461 (M.D. Ala. 2001)) (internal quotation marks omitted).


         Ms. Williams moves to compel responses to interrogatories to which she believes Biomet made boilerplate objections, which the rules don't allow. Biomet has withdrawn the objections that Biomet described as “general” and the plaintiff called “boilerplate.” The objections appeared to lean toward the boilerplate side of the spectrum: they set forth general grounds upon which Biomet contended the material sought wasn't discoverable, but didn't explain just how the objection applied to the information sought. But Biomet's response to the motion to compel laid its reasoning out well, and when one looks back at the “general” objection, the objection is perfectly clear: Biomet argues that it already has produced the requested information, either to the plaintiffs' steering committee or to Rocket Trak, a third party vendor from which Ms. Williams can obtain the information under the same terms that would apply to Biomet. That doesn't mean the objections are sufficient, but they aren't impermissible boilerplate responses.

         Biomet's response to the motion to compel says that it withdraws its general objections, “with the exception of No.5, which preserves privilege[.]” Biomet used the same language in General Objection No. 5 in its objections and responses to both the interrogatories and requests for production: Biomet objected “to the extent that they seek information or documents that are subject to attorney-client privilege, work-product doctrine or other protections.” This objection is a blanket, general objection that lacks the specificity required for assertion of a privilege in discovery. See Yessenow v. Hudson, 270 F.R.D. 422, 427 (N.D. Ind. 2010) (citing Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009). To the extent Biomet has asserted a privilege objection to any of the interrogatories or requests for production, it provides no basis for refusal to produce the information. But since Biomet doesn't appear to have withheld any information or documents on the strength of its privilege assertion, the court denies the motion to compel insofar as it is based on the inadequacy of that objection.


         This MDL docket has been operative since 2012. Hundreds of cases already have been remanded or transferred to other courts for trial, with all parties and courts understanding that most case-specific, and all non-case-specific discovery (also described as “general” and “generic” in past orders), has been completed in the MDL court.

         For the most part, Biomet has satisfied its discovery obligations in two ways. First, Biomet produced millions of documents and custodian-deponents early in the docket's life. Most of those, as I understand it, related to the development and manufacture of, the dissemination of information about, and negative information known to Biomet relating to, the Biomet devices at issue in this docket.

         Second, with respect to each plaintiff whose case entered this docket, Biomet produced to the Plaintiffs' Steering Committee a plaintiff-specific “Defendant's Fact Sheet” and a plaintiff-specific complaint file. I don't understand Ms. Williams to claim that Biomet didn't produce her fact sheet and complaint file to the steering committee. Biomet reports that it arranges for each plaintiff's full medical records to be kept by a third-party ...

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