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Smith v. Davol Inc.

Superior Court of Rhode Island, Providence

December 5, 2018

DAVOL INC. and C. R. BARD INC., Defendants.

          For Plaintiff: Robert W. Smith, Esq. Ryan C. Hurley, Esq.

          For Defendant: Mark T. Nugent, Esq. Thomas W. Robinson, Esq.


          GIBNEY, P.J.

         Davol Inc. (Davol) and C. R. Bard Inc. (Bard) (collectively Defendants) move to compel Wayne Smith and Rebecca Smith (collectively Plaintiffs) to respond to Davol's first set of interrogatories and Defendants' first set of requests for production of documents. Plaintiffs object to all of Defendants' discovery requests. Jurisdiction is pursuant to G.L. 1956 § 8-2-14.

         I Facts and Travel

         On December 23, 2008, Plaintiffs filed a Complaint alleging Wayne Smith was injured by a defective Composix® Kugel Mesh Patch (Kugel Patch), a medical device designed, manufactured and distributed by Defendants. The Kugel Patch was implanted in Mr. Smith's body to repair a ventral hernia and was thereafter removed upon the advice of his physician. Plaintiffs allege Mr. Smith suffered physical pain and mental anguish, incurred substantial medical bills and loss of earning capacity as a result of the removal of the Kugel Patch.

         On October 26, 2017, Davol served each Plaintiff with a set of interrogatories and Defendants served each Plaintiff with a request for production of documents. On December 27, 2017, without supporting legal memoranda, Plaintiffs objected to each of these discovery requests offering a cursory and incomplete list of reasons for their refusal to produce the requested information.

         In an April 6, 2018, letter to Plaintiffs' attorney, Defendants stated that these responses were insufficient, both procedurally and substantively. As a procedural matter, Defendants alleged Plaintiffs neglected to sign their interrogatory responses as required by Super. R. Civ. P. 33. Substantively, Defendants argued Plaintiffs' objections were incomplete as Plaintiffs failed to answer any interrogatories or produce any requested documents and offered only a list of objections that ignored many of Defendants' requests. Defendants further asserted that the discovery requests seeking health-related information and damages are relevant to this suit, and Plaintiffs cannot claim a privilege for this information.

         After Plaintiffs failed to respond to the letter, Defendants moved to compel Plaintiffs' responses to their discovery requests on June 26, 2018. Defendants ask the Court to enter a thirty day order compelling Plaintiffs to produce these materials and to order Plaintiffs to verify their amended interrogatory responses. Plaintiffs have not objected or otherwise responded to Defendants' motion nor have they provided any discovery materials to date.

         II Standard of Review

         Underlying the rules of discovery is the principle "that prior to trial, all data relevant to the pending controversy should be disclosed unless the data is privileged." Cabral v. Arruda, 556 A.2d 47, 48 (R.I. 1989) (citing 8 Wright & Miller, Federal Practice and Procedure: Civil § 2001 at 15 (1970)). Accordingly, trial courts have broad discretion over discovery matters and may sanction recalcitrant litigants. Martin v. Howard, 784 A.2d 291, 296 (R.I. 2001) (citing Colvin v. Lekas, 731 A.2d 718, 720 (R.I. 1999); Super. R. Civ. P. 37(d)). This discretion extends to motions to compel discovery, which will be disturbed by the Supreme Court only in the event it finds "an abuse of that discretion." Colvin, 731 A.2d at 720 (citing Corvese v. Medco Containment Servs., Inc., 687 A.2d 880, 881 (R.I. 1997)). In reviewing discovery orders, the Supreme Court has adopted a test "to determine relevancy . . . [that examines] 'whether the material sought is relevant to the subject matter of the suit, not whether it is relevant to the precise issues presented by the pleadings.'" Cardi v. Med. Homes of R.I., Inc., 741 A.2d 278, 279 (R.I. 1999) (quoting DeCarvalho v. Gonsalves, 106 R.I. 620, 627, 262 A.2d 630, 634 (1970)). "It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Super. R. Civ. P. 26(b)(1).

         III Analysis

         In his December 27, 2017 objections, Wayne Smith argues Davol's first set of interrogatories exceed the scope of Rules 26 and 33 of the Superior Court Rules of Civil Procedure. These interrogatories seek, inter alia, Mr. Smith's medical history as it relates to the hernia repair and the Kugel Patch; support for Plaintiffs' claims of manufacturing defect, inadequate warning, breach of express or implied warranty, failure to warn, and negligence; Mr. Smith's employment history; and possible witnesses in the case. Specifically, Wayne Smith argues interrogatory 6 (which inquires into "accidents, injuries, or surgeries that happened . . . prior to the implantation of [the] . . . Kugel Patch") and interrogatory 7 (which asks Mr. Smith to identify "medical conditions, congenital defects or conditions, or any other physical or emotional disability" prior to the hernia surgery) seek confidential health information. He further objects to interrogatories 4, 5, 8, 10-18 and 25 on the grounds that responses to such requests would reveal privileged information. These interrogatories seek details regarding the Kugel Patch, such as "whether [it was] inspected or tested," along with "the amount of all damages [sought] . . . in [the] Complaint." Mr. Smith argues interrogatories 1, 9, 20, 21 and 24 are overly broad, and he has neither objected nor responded to interrogatories 2, 3, 19, or 23.

         Wayne Smith raises similar objections to Defendants' first set of requests for production of documents. He objects to requests 11, 13, 17, 18, 20 and 35 on the grounds that the requested documents contain confidential health information. These requests seek, inter alia, documentation of benefits received by Mr. Smith in payment for his health care treatment, communications with the physician who implanted the Kugel Patch, Mr. Smith's medical records from the past fifteen years, and documentation of warnings received by Mr. Smith prior to the implantation of the Kugel Patch. He further argues document requests 4, 9, 10, 16, 19, 22, 24-26, 28-34, 38 and 39 (which seek information including statements of "any person . . . who was a witness to any of the facts," "documents that support . . . damages in [the] case") seek privileged information and that document requests 37 and 40 are overly broad. Request 37 solicits social media postings or emails by Mr. Smith regarding the ...

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