IN RE: DAVOL/C.R. BARD HERNIA MESH MULTI-CASE MANAGEMENT This Document Relates to: ALL CASES
A. Migliori, Esq.; Jonathan D. Orent, Esq. For Plaintiff:
T. Nugent, Esq.; Michael K. Brown, Esq.; Eric L. For
Defendant: Alexander, Esq.
this Court is Plaintiffs' Motion to Compel C.R. Bard,
Inc. (Bard) and Davol Inc. (Davol) (collectively Defendants)
to respond to Plaintiffs' Third and Fourth Requests for
Production of Documents. Plaintiffs further move this Court
to strike Defendants' objections to Plaintiffs'
Requests for Production. Defendants object to Plaintiffs'
motions. Jurisdiction is pursuant to G. L. 1956 §
Facts and Travel
February 9, 2018, Plaintiffs filed a Master Long Form
Complaint seeking to recover for injuries resulting from
allegedly defective medical devices designed, manufactured,
distributed, and sold by Defendants. The medical devices at
issue are hernia repair products intended for permanent
implantation in the human body. The Plaintiffs include both
individuals who have been surgically implanted with these
devices and their spouses.
Davol, a Delaware corporation with its principal place of
business in Rhode Island, is engaged in the research,
development, and manufacture of various medical products
including the hernia repair devices at issue. Davol is a
wholly owned subsidiary of Bard, a New Jersey corporation. On
December 31, 2017, Bard was acquired by Becton Dickinson, a
third party that has not been joined in this action. Davol
became a wholly-owned subsidiary of Becton Dickinson upon
completion of the acquisition.
August 2018 and October 2018, Plaintiffs served the
Defendants with Plaintiffs' First, Second, Third, and
Fourth Sets of Requests for Production of Documents. Between
October 2018 and November 2018, Defendants submitted written
responses and objections to Plaintiffs' Requests, but did
not produce the requested documents or a privilege log. The
parties subsequently met and conferred and reached a
substantial agreement. However, they were unable to reach an
independent agreement regarding two categories of documents:
those arising from the due diligence process of Bard's
merger with Becton Dickinson, and foreign regulatory
December 12, 2018, Plaintiffs moved to compel Defendants'
responses to Plaintiffs' Third and Fourth Sets of
Requests for Production of Documents. Plaintiffs' Third
Set of Requests for Production seeks information concerning
this hernia mesh litigation that Defendants sent to Becton
Dickinson prior to the merger, while Plaintiffs' Fourth
Set of Requests for Production seeks United States and
foreign regulatory documents. On February 12, 2019,
Plaintiffs moved to compel Defendants' responses to
Plaintiffs' First, Second, and Fourth Sets of Requests
for Production. Plaintiffs' First Set of Requests for
Production seeks documents pertaining to Defendants'
product testing and design, contracts with researchers and
other third parties and budgeting for Defendants'
products, while the Second Set of Requests for Production
seeks documents responsive to search terms that accompanied
the agreed upon Order of March 31, 2008 in MDL 1842 and R.I.
State Court Coordination 2008-9999.
February 19, 2019, Defendants objected to Plaintiffs'
motions, arguing that Defendants were working as diligently
as possible to fulfill their ongoing discovery obligations
and that Plaintiffs' motions were either premature or
moot. On February 20, 2019, Plaintiffs submitted their reply
brief in further support of their motions to compel. On
February 21, 2019, this Court heard the parties at oral
Standard of Review
Super. R. Civ. P. 26(b), "[p]arties may obtain discovery
regarding any matter, not privileged, which is relevant to
the subject matter involved in the pending litigation."
Super. R. Civ. P. 26(b)(1). The fact that information sought
may not be admissible at trial is not grounds for an
objection to a discovery request. Id. Pursuant to
Super. R. Civ. P. 34, a party may serve any other party with
a request for documents, electronically stored information,
tangible things, or other discoverable information within the
scope of Rule 26(b) and may move for a court order if the
party that received the request fails to respond. The trial
court may impose sanctions upon litigants who refuse to
participate in discovery. Super. R. Civ. P. 37(b); see
also Senn v. Surgidev Corp., 641 A.2d 1311, 1320 (R.I.
1994) (explaining that "Rule 37(b) . . . affords the
court very broad discretion" in imposing sanctions for
refusal to participate in discovery).
well-settled that the trial court has broad discretion over
matters of discovery. Martin v. Howard, 784 A.2d
291, 296 (R.I. 2001) (citing Colvin v. Lekas, 731
A.2d 718, 720 (R.I. 1999)); see also Bashforth v.
Zampini, 576 A.2d 1197, 1201 (R.I. 1990). This
discretion extends to motions to compel discovery, which will
only be disturbed by the Supreme Court 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, 882 (R.I. 1997)). Likewise, "a
trial court possesses the discretion to stay discovery in a
civil case until one or more potentially dispositive issues
have been decided." Martin, 784 A.2d at 297. In
reviewing discovery orders for abuse of discretion, our
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 Rhode
Island, Inc., 741 A.2d 278, 289 (R.I. 1999) (quoting
DeCarvalho v. Gonsalves, 106 R.I. 620, 627, 262 A.2d
630, 634 (1970)).