United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
products liability action concerns the ProFemur Plus CoCr
Modular Neck, PHAC1254 (the “Component”), an
allegedly defective hip implant component that was designed
and marketed by Wright Medical Technology, Inc and Wright
Medical Group, Inc (“Wright Medical” or
“Defendants”). Plaintiff Mark Costa, M.D., who
underwent a total hip replacement in 2011, brought this
action, together with his wife, Marilyn Chown, after he
suffered a catastrophic fracture of the cobalt-chromium
Component in his hip. Before the Court is a discovery dispute
concerning the scope of a request for so-called cloned or
piggyback discovery that has been generated in other lawsuits
involving alleged failures of ProFemur devices similar to the
Component. For the reasons explained herein, Plaintiffs'
motion to compel discovery, ECF No. 37, is GRANTED
in part and DENIED in part.
Federal Rule of Civil Procedure 26(b), parties are entitled
to discovery “regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case.”
“Materials produced and deposition testimony given in
other litigation is generally discoverable upon a showing of
substantial similarity between the prior and current
actions.” Town of Westport v. Monsanto Co.,
No. 14-12041-DJC, 2015 WL 13685105, at *3 (D. Mass. Nov. 5,
2015) (citing Capital Ventures Int'l v. J.P. Mortg.
Acquisition Corp., No. 12-10085-RWZ, 2014 WL 1431124, at
*1-2 (D. Mass. Apr. 14, 2014); see also Lillibridge v.
Nautilus Ins. Co., No. 10-4105-KES, 2013 WL 1896825, at
*5 (D.S.D. May 3, 2013); Carter-Wallace, Inc. v. Hartz
Mountain Indus., Inc., 92 F.R.D. 67, 70 (S.D.N.Y.
1981)). So-called cloned discovery is often attractive to
litigants because it can reduce the burden and expense of
obtaining relevant information and help the parties narrow
the issues in dispute more rapidly than they otherwise could.
See, e.g., Waters v. Earthlink, Inc., No.
01-11887-REK, 2004 WL 6000237, at *3 (D. Mass. Dec. 1, 2004);
Conn. Gen. Life Ins. Co. v. Advanced Surgery Ctr. of
Bethesda, LLC, No. 14-2376, 2016 WL 7115952, at *3 (D.
Md. Dec. 7, 2016).
Plaintiffs move to compel production of documents responsive
to their Request for Production No. 35 (“RFP No.
35”), which reads:
Please produce all documents and data, including deposition
transcripts, from all other matters commenced against you
regarding injuries and/or death alleged to be related to
corrosion, disassembly, pseudotumors, fractures of the
modular neck, elevated Cobalt and/or Chromium serum levels in
patients, or adverse local tissue reaction and the use of the
No. 37 at 1]. “Product” is defined as the
“Wright Medical ProFemur Plus CoCr Modular Neck,
PHAC1254.” [ECF No. 37-1 at 5].
parties agree that Defendants have previously litigated cases
concerning failures of products with similarities to the
Component. Plaintiffs' request, however, includes cloned
discovery from cases that relate to failures in ProFemur
necks that, unlike the Component, were made with titanium,
and from cases that concern a type of product failure
different-in-kind from the fracture of the Component.
See [ECF No. 37]. Defendants argue that none of
those cases are so similar that cloned discovery is
appropriate, that cloned discovery concerning titanium
ProFemur necks is not responsive to RFP No. 35, and that the
requested cloned discovery is, more generally, of limited
relevance and disproportionate to the needs of this action.
See [ECF No. 38].
Court agrees that Plaintiffs are not entitled to cloned
discovery from cases concerning titanium ProFemurs because
that product is distinct from the product at issue here and
cloned discovery from those cases would likely result in
production of information with little or no relevance to this
case. Similarly, cloned discovery from cases
that do not involve the fracture of a ProFemur neck is
unwarranted because those cases are not “substantially
similar.” Monsanto Co., 2015 WL 13685105, at
assert that there has been only one other case that involved
an alleged fracture of the Component in which depositions of
its employees were conducted and that cloned discovery from
that case would be prejudicial because the case involved
claims against MicroPort, a company that acquired
Defendants' orthopedics business in 2014 and recalled the
Component in 2015. [ECF No. 38 at 5-6]. The cases, however,
are substantially similar because both involve claims
stemming from fractures of the Component, even though
MicroPort, which was voluntarily dismissed from this case
without prejudice, see [ECF No. 13], is no longer a
Defendants shall produce all documents and data, including
deposition transcripts, that were produced by Defendants or
MicroPort Orthopedics, Inc. from cases based on the alleged
fracture of a ProFemur Plus CoCr Modular Neck, PHAC1254.
Plaintiffs' request to compel production of documents in
response to RFP No. 35 is otherwise denied.