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In re Davol/C.R. Bard Hernia Mesh Multi-Case Management

Superior Court of Rhode Island, Providence

April 12, 2019

IN RE: DAVOL/C.R. BARD HERNIA MESH MULTI-CASE MANAGEMENT This Document Relates to: ALL CASES

          Donald A. Migliori, Esq.; Jonathan D. Orent, Esq. For Plaintiff:

          Mark T. Nugent, Esq.; Michael K. Brown, Esq.; Eric For Defendant: Alexander, Esq.

          DECISION

          GIBNEY, P.J.

         C.R. Bard, Inc. (Bard) and Davol Inc. (Davol) (collectively Defendants) move this Court to adopt a procedural order (Procedural Order No. 5 or Defendants' Order) concerning treating physicians of Plaintiffs in this master docket. Plaintiffs object and move for adoption of a competing order (Plaintiffs' Order) to merge this docket with related Master Docket PC-2008-9999, which closed in 2017 (the 2008 Docket). Jurisdiction is pursuant to G. L. 1956 § 8-2-14.

         I Facts and Travel

         On February 9, 2018, Plaintiffs filed a Master Long Form Complaint and Jury Demand, [1]seeking to recover for personal injuries allegedly caused by medical devices designed, manufactured, and distributed by Defendants. The devices at issue are hernia repair products intended for permanent implantation in the human body. Plaintiffs allege that these medical devices are unreasonably dangerous and defective, and present risks including chronic pain, infection, and death.

         On August 14, 2018, Defendants moved this Court to adopt Procedural Order No. 5. Therein, Defendants propose protocols for communications with and depositions of Plaintiffs' treating physicians. Procedural Order No. 5 contains sections pertaining to (1) ex parte communications with treating physicians, (2) depositions of treating physicians, (3) disclosure of documents prior to depositions of treating physicians, and (4) use of treating physicians as expert witnesses.

         Plaintiffs object to this Court's adoption of Defendants' Order. Instead, they move for the adoption of Plaintiffs' Order, which proposes the merger of this Master Docket with the related 2008 Docket.[2] Plaintiffs' Order additionally proposes the adoption of all orders entered in the 2008 Docket, with the exception of "The Common Benefit Order" or "unless superseded by a new order of this Court." See Ex. J, Pls.' Mem. Opp'n Defs.' Mot. Adoption Procedural Order. Defendants object to the Court's adoption of Plaintiffs' Order.

         II Standard of Review

         It is well-settled that a trial justice has broad discretion over discovery. State v. Lead Indus. Ass'n, Inc., 64 A.3d 1183, 1191 (R.I. 2013). Upon a party's motion and showing of good cause, this Court "may make any [discovery] order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Super. R. Civ. P. 26(c). The Supreme Court reviews discovery orders under a de novo standard of review. Sandy Point Farms, Inc. v. Sandy Point Village, LLC, 200 A.3d 659, 662 (R.I. 2019) (citing Cashman Equip. Corp., Inc. v. Cardi Corp., Inc., 139 A.3d 379, 381 (R.I. 2016)). However, the Supreme Court will not disturb these decisions absent a finding of abuse of discretion. Id. (citing Lead Industries Ass'n, Inc., 64 A.3d at 1191).

         III Analysis

         Given the high volume of cases in this coordinated action, Defendants argue that Procedural Order No. 5 is necessary to promote efficiency and fairness in all aspects of discovery related to Plaintiffs' treating physicians. Citing this Court's order pertaining to ex parte communications in the 2008 Docket, [3] Defendants argue that Procedural Order No. 5 is "consistent with the spirit" of that order, in that it precludes Defendants from having ex parte communications with Plaintiffs' treating physicians regarding issues of Plaintiffs' treatment but moves discovery forward by allowing Defendants to communicate with these physicians' offices to schedule depositions. Defendants further argue that Procedural Order No. 5 is consistent with other courts' recent treatment of ex parte communications with treating physicians, and reference orders from the United States District Courts for the Northern District of Georgia, the District of New Hampshire, and the District of Arizona, as well as the Superior Court of New Jersey.[4]

         Plaintiffs object, arguing that Procedural Order No. 5 seeks to allow Defendants to have ex parte communications with Plaintiffs' treating physicians, while placing unworkable limits upon Plaintiffs' ability to communicate with these physicians. According to Plaintiffs, this Court considered the issues presented in the within motion at two instances in the 2008 Docket, both times rejecting similar arguments that Defendants now present to the Court. In re: All Individual Kugel Mesh Cases, No. PC-2008-9999, Apr. 28, 2008, Gibney, J. (Protective Order Prohibiting Ex Parte Communications); In re: All Individual Kugel Mesh Cases, No. PC-2008-9999 (R.I. Super. Aug. 26, 2008) (Gibney, J.) (Decision). Plaintiffs further argue that courts disfavor the procedural limits Defendants seek to place upon Plaintiffs' communications with their physicians, which were specifically rejected by the United States District Court for the District of Rhode Island in a related federal multidistrict litigation. In re Kugel Mesh Hernia Repair Patch Litig., MDL Docket No. 07-1842ML, 2008 WL 2420997 (D.R.I. Jan. 22, 2008). Instead, Plaintiffs seek to merge this docket with the 2008 Docket, and adopt essentially all orders therein, through this Court's adoption of Plaintiffs' Order.

         In reply, Defendants assert that Plaintiffs mischaracterize Procedural Order No. 5 and submit that Defendants' Order is distinct from the proposed order that this Court rejected ten years ago. Defendants specifically assert that the plain language of Procedural Order No. 5 allows Plaintiffs' counsel to have ex parte contact with Plaintiffs' physicians, but that certain details regarding these communications should be disclosed to Defendants. Defendants ...


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