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Torres v. Johnson & Johnson and Ethicon, Inc.

United States District Court, D. Massachusetts

August 24, 2018




         I. Relevant background

         In this product liability action, the plaintiff, Miguel Ramos Torres (“Plaintiff”), alleges his hernia was repaired with a Hernia Mesh Polypropylene 3D Patch System (“3D Patch”) designed, manufactured, and sold by the defendants, and that, in the years following his surgery, Plaintiff experienced unexplained infections and abdominal pain. During exploratory surgery, doctors discovered Prolene protruding from Plaintiff's umbilical area. Eventually, he had revision surgery to remove the 3D Patch.

         Plaintiff filed suit in the Superior Court Department of the Massachusetts Trial Court. On March 23, 2018, the defendants removed the case to this court (Dkt. No. 1). Plaintiff's motion to remand the case to state court was unsuccessful (Dkt. No. 27). Before the case was removed, Plaintiff's Motion to Compel Further Answers to Interrogatories From Defendant Ethicon, Inc. had been filed in state court (Dkt. No. 31-1) (“Plaintiff's Motion”). Defendants Johnson & Johnson and Ethicon, Inc. (“Ethicon”) had filed an opposition to Plaintiff's motion to compel (Dkt. No. 31-2). After Plaintiff's remand motion was denied, Plaintiff filed a Motion for Court to Hear Plaintiff's Motion to Compel Answers to Interrogatories which was Pending Before Superior Court Removal (Dkt. No. 31). The court heard argument from the parties on Plaintiff's Motion (and two other discovery motions filed by Plaintiff) at the July 30, 2018 Rule 16 scheduling conference (Dkt. No. 56). At the conclusion of the scheduling conference, the court took Plaintiff's Motion under advisement. For the following reasons, the court DENIES Plaintiff's Motion. As to limited aspects of Plaintiff's Motion, denial is without prejudice to a renewed motion by Plaintiff to compel supplemental interrogatory response(s) after additional discovery has been conducted if conferring pursuant to Local Rule 7.1 does not resolve remaining disputes, if any, between the parties.[1]

         II. Analysis

         A. Legal Standard

         Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that, “[u]nless otherwise limited by court order, the scope of discovery is as follows: 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 . . . Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b)(1). There are limits on discovery. Nonetheless, “[a]s a general matter, relevancy must be broadly construed at the discovery stage such that information is discoverable if there is any possibility it might be relevant to the subject matter of the action.” Cherkaoui v. City of Quincy, Civil Action No. 14- cv-10571-LTS, 2015 WL 4504937, at *1 (July 23, 2015) (quoting E.E.O.C. v. Electro-Term, Inc., 167 F.R.D. 344, 346 (D. Mass. 1996)). “[B]ecause discovery itself is designed to help define and clarify the issues, the limits set forth in Rule 26 must be construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Green v. Cosby, CIVIL ACTION N. 14-cv-30211-MGM, 2015 WL 9594287, at *2 (D. Mass. Dec. 31, 2015) (quoting In re New England Compounding Pharmacy, Inc. Prods. Liab. Litig., MDL No. 13-2419-FDS, 2013 WL 6058483, at *4 (D. Mass. Nov. 13, 2013)).

         The interrogatories at issue are directed to Ethicon. In response to most of the interrogatories at issue, Ethicon answered in part by invoking Fed.R.Civ.P. 33(d) (“Rule 33(d)”), which provides:

Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (included electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
(1) Specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.

         Rule 33(d).

         Case law from this court provides that Ethicon, as the party seeking to rely on Rule 33(d), must represent that the answer to the interrogatory at issue will be found in the business records it identifies; must show that there would be a sufficiently onerous burden on Ethicon if it is not permitted to invoke Rule 33(d); and, finally, that the burden of deriving the information from the business records is substantially the same for the interrogating party as for the responding party. This requires, among other things, that the responding party adequately identify the records from which the information requested can be derived. See Sabel v. Mead Johnson & Co., 110 F.R.D. 553, 556-57 (D. Mass. 1986); see also Sabel v. Mead Johnson & Co., 112 F.R.D. 211, 212-13 (D. Mass. 1986). In objecting to Ethicon's resort to Rule 33(d), Plaintiff has “the burden to show that deriving or ascertaining answers is not substantially the same for both parties.” Petroleum Ins. Agency, Inc. v. Hartford Accident & Indem. Co., 111 F.R.D. 118, 320 (D. Mass. 1984). Further, “[t]he party seeking an order compelling discovery responses over the opponent's objection bears the initial burden of showing that the discovery requested is relevant.” Cont'l W. Ins. Co. v. Opechee Constr. Corp., Civil No. 15-cv-006-JD, 2016 WL 1642626, at *1 (D.N.H. Apr. 25, 2016) (citing Caouette v. OfficeMax, Inc., 352 F.Supp.2d 134, 136 (D.N.H., 2005)). “Once a showing of relevance has been made, the objecting party bears the burden of showing that a discovery request is improper.” Id. (citing Gowan v. Mid Century Ins. Co., 309 F.R.D. 503, 509 (D.S.D. 2015)).

         B. Interrogat ...

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