ORDER
JAMES P. O'HARA, Magistrate Judge.
On February 10, 2016, U.S. District Judge Kathryn H. Vratil and U.S. Magistrate Judge James P. O'Hara conducted a status conference in this multidistrict litigation ("MDL"). In preparation for the conference, counsel jointly submitted a status report via letter dated February 8, 2016. This order memorializes rulings made during the conference and sets forth additional procedures for the management of this MDL.
1. In lieu of a previously contemplated case-specific surgeons and facilities disclosure order,1 plaintiffs and the Ethicon defendants have agreed on a uniform Defendant Fact Sheet ("DFS"), in the form attached to this order as Exhibit 1. Per the parties' stipulation and joint request, the DFS is approved and must be used in this MDL. Counsel reported, however, there are some disputes about certain aspects of additional case-specific discovery plaintiffs intend to seek from the Ethicon defendants. But since none of the parties see any pressing need for the court to resolve those disputes now, the court will refrain from setting a deadline to file motions in this regard.
2. The parties report that, with the exception of social media information described below, they have agreed on uniform sets of interrogatories and document requests which the Ethicon defendants will serve on plaintiffs in each individual case. Copies of those interrogatories and document requests are attached as Exhibits 2 and 3, respectively, and are approved by the court for use in this MDL. The parties also have agreed on a separate, combined set of damages-related interrogatories and document requests which will be served on each plaintiff. A copy of this set of discovery requests is attached to this order as Exhibit 4, and is approved by the court for use in this MDL. The parties have yet to reach agreement about Interrogatory No. 18 (see p. 5 of Exhibit 2) and Document Request No. 20 (see p. 3 of Exhibit 3), both of which deal with information published or maintained by plaintiffs on the Internet (such as in Facebook and Instagram posts). If the parties are unable to resolve this dispute after further conference, then by February 23, 2016, they must file a joint motion, limited to ten double-spaced pages, asking the court to resolve the dispute. The motion must cite caselaw addressing the relevance and privacy concerns raised by plaintiffs; address why any privacy concerns can or cannot be alleviated by application of the protective order in this MDL (ECF doc. 62); and discuss the cost of any vendor identified to help efficiently gather and produce the requested discovery. The parties must attach to the motion the version of the interrogatory and document request that each side proposes, along with a red-lined comparison of the competing versions.
3. The parties report that generally they have resolved issues concerning the previously contemplated common discovery requests to be served by defendants on the plaintiffs' steering committee ("PSC"), i.e., by incorporating that common discovery into the uniform discovery requests to be answered by each plaintiff, as evidenced in Exhibits 2, 3, and 4 to this order. There remains, however, a dispute regarding one proposed request to the PSC. If the parties are unable to resolve this dispute after further conference, then by February 23, 2016, they must file a joint motion, limited to five double-spaced pages, asking the court to resolve the dispute. The parties must attach to the motion the version of the discovery request that each side proposes, along with a red-lined comparison of the competing versions.
4. The parties report they are still attempting to reach agreement on a proposed healthcare provider order that addresses ex parte contacts and depositions. If the parties are unable to resolve this dispute after further conference, then by February 23, 2016, they must file a joint motion, limited to twenty double-spaced pages, asking the court to resolve the dispute. Also by February 23, 2016, for the applicable states whose law on this matter the parties agree upon, the parties must file a joint submission briefly stating their agreed understanding of that law.
5. The parties and the court discussed who is permitted to attend in extremis depositions. At the conclusion of the discussion, the parties agreed that the protocol for "common" depositions that was set forth in Scheduling Order No. 1 should apply here, and it is so ordered.2
6. The status conference previously scheduled for March 4, 2016, at 9:00 a.m.3 is cancelled, as jointly requested by the parties. However, the court may reschedule it at a later date if the court determines meeting would be useful to address any problems that arise as the parties negotiate a new proposed common benefit order. The March 30, 2016 status conference will be held as previously scheduled. The court reminds the parties that by noon at least two business days before all status conferences, the parties' lead counsel must confer and then jointly submit to the court a status report and proposed agenda in a letter (limited to three pages) e-mailed to:
ksd_vratil_chambers@ksd.uscourts.gov and ksd_ohara_chambers@ksd.uscourts.gov.4
7. The court also heard argument on a number of pending motions, including motions for resignation from the PSC and a motion for the establishment of a common benefit fund. Judge Vratil will set out her rulings on those motions in a separate order.
IT IS SO ORDERED.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
IN RE: ETHICON, INC. POWER MORCELLATOR
PRODUCTS LIABILITY LITIGATION
MDL No. 2652
This Document Relates To: Case No. 2:15-md-2652
Civil Action No.: __________________ ______________________________
Name of Plaintiff
DEFENDANT FACT SHEET
For each case, Defendant must complete this Fact Sheet. Except as otherwise set forth in any Order, this Fact Sheet must be completed and served on Plaintiff's counsel in each individual case within 30 days service of Plaintiff's Responses to Defendant's standard set of Interrogatories or with ninety (90) days of the case being transferred to this MDL, whichever is earlier.
Please identify all persons who provided information responsive to this DFS, and their relationship to Defendant.
I. CASE INFORMATION
Case Caption: ______________________________________________
Case Number: ______________________________________________
II. MORCELLATING SURGEON(S) AND PRE-MORCELLATION EVALUATING GYNECOLOGIST(S)
In response to Defendant's standard set of Interrogatories, Plaintiff has identified the morcellating surgeon(s) and other evaluating gynecologist(s) for the three (3) years preceding her morcellation surgery. For each such identified morcellating surgeon and/or evaluating gynecologist (hereafter "Identified Physician(s)"), provide the following information:
A. NON-SALES REPRESENTATIVE CONSULTATION CONTACTS
As to each Identified Physician with whom Defendant was affiliated or consulted regarding any Ethicon power morcellator device (outside the context of sales representative contacts), set forth the following:
1. State, yes or no, whether any monetary or non-monetary benefits, including but not limited to reimbursement for travel or other costs and expenditures, have ever been conferred by Defendant to the Identified Physician(s). If yes, state:
• If the monetary or non-monetary benefit is related to Defendant's morcellation product(s);
• The amount(s) of any monetary benefits related to morcellation products and the date(s) provided; and
• Describe the nature of any non-monetary benefit(s) related to morcellation products and the date(s) provided.
2. List any written agreements or contracts setting forth the nature, dates, and details of the consulting relationship or affiliation relevant to the morcellation product(s); this includes, but is not limited to any agreements to research or otherwise study the Ethicon morcellation products. Please produce a copy of such agreement or proposed agreement.
3. List any conferences regarding Ethicon's morcellation products, which were sponsored in whole or in part by Defendant(s), that each Identified Physician attended. Please provide all conference materials for each identified conference, to include attendee lists, the location and date of said conference and whether the Identified Physician presented or spoke on topics related to Defendant's morcellation products.
4. Identify any written communications, such as "Dear Healthcare Provider" letters or other written communications, provided to the Identified Physician(s) related to Defendant's morcellation products.
B. SALES REPRESENTATIVES and/or other employee or agent of the defendant(s) who had contact with any of the Identified Physician(s) regarding the purchase or use of Defendant(s)' power morcellator (hereafter, collectively referred to as "sales representative").
For each morcellating surgeon identified by Plaintiff, set forth the following:
1. Identity of Defendant(s)' sales representative(s) that had contact, prior to the date of Plaintiff's surgery, with the morcellating surgeon regarding any Ethicon morcellation device.
2. State whether or not the sales representative(s) is currently employed by Defendant. If the sales representative(s) is no longer employed by Defendant, then state whether the sales representative(s) is represented by counsel for Defendant, and, if not, provide the last known address of the sales representative(s).
3. Identify all contacts or communications between the morcellating surgeon and sales representative(s), including but not limited to copies of any sales call reports or other record of sales calls and communications.
4. State whether or not a representative of Defendant(s) ever provided training with respect to Ethicon's morcellation products to the morcellating surgeon. If so, provide the dates for any such training and produce copies of any training materials provided.
5. Identify all training materials, hand-outs, brochures, talking points, scripts or other materials provided by Defendant to the sales representatives regarding communication with the morcellating surgeon on topics related to Defendant's morcellation devices.
6. To the extent not already provided, identify all marketing and/or promotional materials provided by Defendant to the morcellating surgeon on topics related to Defendant's morcellation devices.
III. INFORMATON REGARDING THE PLAINTIFF
1. Outside of information exchanged as part of this litigation, identify all data, information, objects, and reports in Defendant's possession or control specific to Plaintiff and Plaintiff's medical conditions. Attorney-work product is specifically excluded.
2. Identify any contact, either written or oral, between Plaintiff (or anyone acting on Plaintiff's behalf other than legal counsel) and any employee or representative of Defendant(s), including but not limited to pre-operative inquiries and post-operative complaints.
3. Identify all MedWatch Adverse Event Reports and/or any other documents submitted to the FDA or any other government agency with regard to Plaintiff, including the AER itself, all backup documentation concerning Plaintiff, and any evaluation or investigation Defendant(s) have done concerning Plaintiff.
4. Identify all communications that Defendant has had with any of Plaintiff's medical care providers specifically regarding the Plaintiff.
IV. TANGIBLE THINGS
Please provide the following documents:
1. Aside from any privileged or attorney-work product materials, identify and attach all documents that refer or relate to the Plaintiff in Defendant's possession or control, to the extent not identified and attached in response to a prior question.
2. All call notes, sales rep notes, detail notes, call summaries (or similar documents referred to by a different name) regarding each morcellating surgeon from 10 years prior to morcellation through morcellation procedure and to date.
3. To the extent not already provided, any communications by and between Defendant, the sales representative at issue in this matter and each Identified Physician.
4. A copy of the warnings, DFUs, IFUs, and patient brochures for the morcellation device used in Plaintiff's surgery from inception of the product to date of morcellation, specifically including all versions of each document from inception of the product through morcellation date;
VERIFICATION
I am an authorized agent of Ethicon and I verify the Defendant's Response to Defendants' fact Sheet in In Power Morcellator Products Liability Litigation, MDL No. 2652 (D. Kan). The facts stated herein have been assembled by authorized employees and counsel of Ethicon Corporation and I am informed that the facts stated herein are true. I hereby certify, in my authorized capacity as an agent for Ethicon Corporation that the responses to the aforementioned Defendants' Fact Sheet are true and complete to the best of Ethicon Corporation's knowledge.
Date: ____________ ______________________
Ethicon Corporation
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
IN RE: ETHICON, INC., POWER ) MDL No. 2652
MORCELLATOR PRODUCTS )
LIABILITY LITIGATION ) Case No. 2:15-md-2652
)
(This Document Relates to All Cases) )
)
)
)
DEFENDANTS' FIRST SET OF INTERROGATORIES TO PLAINTIFF
Pursuant to Rule 26 and Rule 33 of the Federal Rules of Civil Procedure and Paragraph 5 of Scheduling Order No. 1, Defendants Ethicon, Inc., and its affiliates (collectively, "Ethicon"), by and through its undersigned attorneys, hereby requests that Plaintiff, provide within thirty days of service hereof, at the offices of Shook, Hardy, and Bacon L.L.P., 2555 Grand Blvd., Kansas City, MO 64108, responses in writing and under oath to the following interrogatories.
INTERROGATORIES
INTERROGATORY NO. 1:
Identify the manufacturer, model name, model number, serial number, lot number and batch number of all morcellation devices used during the Procedure(s).
INTERROGATORY NO. 2:
Other than the Defendants identified in the Complaint or Plaintiff's health care providers identified in Interrogatory No. 4, below, identify each person believed by you to have knowledge of any of the matters alleged in the Complaint, including your alleged injuries and treatment; the Product(s), the Procedure(s); and/or each Defendant's alleged acts or omissions about which you complain.
INTERROGATORY NO. 3:
List [Plaintiff name(s)] (1) full date and place of birth; (2) Social Security Number; (3) residence addresses for the ten years preceding the date of your response, the period of residency and co-residents for each address; (4) if claiming lost income as a damage, provide the total amount of lost income claimed as a result of your alleged injuries and treatment, including the source of such income, a list of your employers for the last ten (10) years, and an explanation of the method by which you calculated this total; and (5) to the extent that you have had any formal education in the healthcare field (including but not limited to, courses in medicine, nursing, public health, and/or home healthcare), identify each educational institution (beginning with high school) from which you obtained that training, by dates attended, and degrees, diplomas, or certificates received.
INTERROGATORY NO. 4:
Describe Plaintiff's health and health care treatment for the last ten (10) years, by identifying, by approximate date, (1) each of Plaintiff's health care providers (including physicians, nurse practitioners, and geneticists), with whom she has consulted; (2) the name and location of each hospital to which she was admitted; and (3) a description of the condition(s) which led to each consultation or admission. The identification of psychiatrists and psychologists is not required unless Plaintiff is asserting a claim for psychiatric or psychological injury.
INTERROGATORY NO. 5:
Describe any communications between Plaintiff and any of Plaintiff's health care providers, which took place prior to the alleged Procedure(s), regarding any risks regarding the Product(s) and Procedure(s), by providing: (1) the name of the health care provider(s); (2) the approximate date(s) of any conversation(s); (3) the exact words or text of any risks conveyed by the health care provider(s) regarding the Product(s) and Procedure(s); and (4) a description of any written materials or handouts provided by the health care provider.
INTERROGATORY NO. 6:
Identify any relative or acquaintance of Plaintiff with whom any of Plaintiff's health care providers discussed the Product(s) or the Procedure(s) prior to the alleged Procedure(s), by providing: (1) the name of the acquaintance; (2) the name of the health care provider(s); (3) the approximate date(s) of any conversation(s); and (4) a summary of the substance of any conversation(s), if you have a belief as to the content of the discussion. For purposes of this Interrogatory, the phrase "relative or acquaintance of Plaintiff" includes, but is not limited to, any of Plaintiff's relatives, family members, friends, or agents, but does not include Plaintiff's legal counsel.
INTERROGATORY NO. 7:
Describe any communications between Plaintiff and any of Plaintiff's health care providers, which took place following the alleged Procedure(s), regarding the Product(s) and Procedure(s), by providing: (1) the name of the health care provider(s); (2) the approximate date(s) of any conversation(s); (3) the exact words or text conveyed by each health care provider regarding the Product(s) and Procedure(s); and (4) all descriptions or opinions regarding the cause of all complications or injuries following the Procedure(s).
INTERROGATORY NO. 8:
Identify any relative or acquaintance of Plaintiff with whom any of Plaintiff's health care providers discussed the Product(s) or the Procedure(s) following the alleged Procedure(s), by providing: (1) the name of the relative acquaintance; (2) the name of the health care provider(s);
(3) the approximate date(s) of any conversation(s); and (4) a summary of the substance of any conversation(s), if you have a belief as to the content of the discussion. For purposes of this Interrogatory, the phrase "relative or acquaintance of Plaintiff" includes, but is not limited to, any of Plaintiff's relatives, family members, friends, or agents, but does not include Plaintiff's legal counsel.
INTERROGATORY NO. 9:
Have you ever filed a medical malpractice lawsuit or taken steps to initiate such?
INTERROGATORY NO. 10:
Other than the Procedure(s), describe any other accidents or procedures which resulted in significant personal injury requiring hospitalization to Plaintiff, including: (1) the date and location of the accident or procedure; (2) each injury suffered; and (3) whether a lawsuit was filed in relation to the injury.
INTERROGATORY NO. 11:
If you have responded pursuant to Paragraph 3(i) of Scheduling Order No. 1, please identify each person who has had possession, custody, and/or control of the Product(s) since it was utilized in the Procedure(s), and (1) state the period during which he or she had possession, custody and/or control of the Product(s); (2) provide a description of any testing or analysis conducted on the Product(s), including the steps, protocol, or methods used in conducting such analysis; (3) provide the identity of any person involved in conducting each analysis; and (4) state whether any person prepared or provided an oral or written report regarding that testing or analysis.
INTERROGATORY NO. 12:
Identify any communication made by Plaintiff or any relative or acquaintance of Plaintiff, and made on behalf of Plaintiff, with members of any medical society or its member physicians regarding [Plaintiff's name], the Product(s) or the Procedure(s), but excluding any treating health care providers or contact or communications with individual member physicians for expert work product purposes. For purposes of this Interrogatory, the phrase "relative or acquaintance of Plaintiff" includes, but is not limited to, any of Plaintiff's relatives, family members, friends, or agents, but does not include Plaintiff's legal counsel.
INTERROGATORY NO. 13:
To the extent any biological relative, including parent(s), grandparent(s), and sibling(s), is known to you to have been diagnosed with cancer, please (1) identify the individual by name and relationship to [Plaintiff's name]; (2) identify the particular type(s) of cancer diagnosed; (3) describe any treatment of the cancer(s); and (4) describe the disposition of this cancer.
INTERROGATORY NO. 14:
Identify each healthcare provider who has diagnosed Plaintiff with cancer, the particular type(s) of cancer diagnosed, the cause of the cancer, the course of treatment recommended, and the prognosis.
INTERROGATORY NO. 15:
Identify the date Plaintiff learned that her alleged injuries were connected to the use of a power morcellator.
INTERROGATORY NO. 16:
Identify the approximate date when you contacted a lawyer concerning [Plaintiff's name] alleged injuries from her procedure(s).
INTERROGATORY NO. 17:
Please state if you took steps to preserve and search for documents related to this litigation, and the approximate dates on which you took those steps.
INTERROGATORY NO. 18:
[Social media request subject to ongoing negotiation. The parties will substitute this request prior to February 10, 2016 conference.]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
IN RE: ETHICON, INC., POWER ) MDL No. 2652
MORCELLATOR PRODUCTS )
LIABILITY LITIGATION ) Case No. 2:15-md-2652
)
(This Document Relates to All Cases) )
)
)
DEFENDANTS' REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF
Pursuant to Rule 26 and Rule 34 of the Federal Rules of Civil Procedure and Paragraph 5 of Scheduling Order No. 1, Defendants Ethicon, Inc., and its affiliates (collectively, "Ethicon"), by and through its undersigned attorneys, hereby requests that Plaintiff, produce the documents and tangible things described herein, to the attention of Debbie Moeller, Esq. at the offices of Shook, Hardy, and Bacon L.L.P., 2555 Grand Blvd., Kansas City, MO 64108, within 30 days of service hereof.
Responses to these Requests shall be signed affirming that, to the best of the signatory's knowledge, information, and belief formed after a reasonable inquiry, that the signatory has completed his/her document production.
REQUESTS FOR PRODUCTION
1. Any packaging, warnings, instructions, advertising materials, pamphlets, articles, handouts, promotional materials, documents, records, correspondence, memoranda or other information you have with respect to the Product(s) used during the surgical procedure at issue in this lawsuit (the "procedure" or the "product").
2. Documents, excluding medical records previously produced, that evidence the use of any morcellator during the Procedure(s).
3. Documents excluding medical records previously produced, that identify the manufacturer, batch number, lot number and serial number of all morcellators used during the Procedure(s).
4. Documents that relate, refer, or pertain to statements made by any agents, representatives, employees or former employees of any Defendant concerning the subject matter of this lawsuit, the Procedure(s), or the Product(s).
5. Documents that relate, refer, or pertain to communications between you and any Defendant or any alleged agent, employee or representative of any Defendant .
6. Documents that relate, refer, or pertain to communications between you or your agents and any medical society or its member physicians, including but not limited to the American Congress of Obstetricians and Gynecologists (ACOG) and/or the American Association of Gynecologic Laparoscopists (AAGL).
7. Documents, excluding medical records previously produced, that relate, refer, or pertain to hospitalizations which relate in any manner to the diagnosis, care, treatment, or management of Plaintiff's condition which required the use of the Product(s) at issue and the injuries or damages for which recovery is or may be sought in this lawsuit.
8. Documents that relate, refer, or pertain to payments of medical expenses made by any source, including without limitations Medicare or any insurance company, as a result of the injuries alleged which you are seeking or may seek to recover in this lawsuit.
9. All diaries, journals or notes prepared by you or any of your representatives (other than your attorney) concerning the Product(s) or the alleged injuries.
10. If you claim past or future loss of income in relation to the claims asserted in this litigation, all federal and state income tax returns with W-2's for five years prior to the Procedure(s) through to the present.
11. If you have responded pursuant to Paragraph 3(i) of Scheduling Order No. 1, documents that relate, refer, or pertain to inspections, examinations or tests conducted by you or your agents, representatives or experts on the product.
12. Aside from documents produced in this litigation by any Defendant, documents that relate, refer, or pertain to each express warranty that you claim any Defendant made with respect to the Product(s).
13. Aside from documents produced in this litigation by any Defendant, documents that relate, refer, or pertain to each implied warranty that you claim any Defendant made with respect to the Product(s).
14. Aside from documents produced in this litigation by any Defendant, documents that relate, refer, or pertain to each unfair trade practice that you claim any Defendant made with respect to the Product(s).
15. Documents, excluding medical records previously produced, that relate, refer, or pertain to the date on which Plaintiff learned that her alleged injuries were connected to the use of a power morcellator.
16. All documents relating to Ethicon obtained by Plaintiffs for the purposes of this litigation from any federal, state, or local governmental or regulatory body in the United States, including but not limited to documents obtained pursuant to any Freedom of Information Act Request(s) made to the United States Food and Drug Administration.
17. All documents created by Ethicon which have been obtained by Plaintiffs for purposes of morcellator litigation from any source other than from any federal, state, or local governmental or regulatory body in the United States, and excluding any documents produced by Ethicon in discovery related to the subject matter of this litigation.
18. All communications obtained by Plaintiffs from any employee, agent, officer, or director of Ethicon.
19. All documents concerning any contacts with any industry groups or medical societies, including but not limited to AAGL and/or ACOG, but excluding any contact with individual member physicians for expert work product purposes.
20. [Social media request subject to ongoing negotiation. The parties will substitute this request prior to February 10, 2016 conference.]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
IN RE: ETHICON, INC., POWER ) MDL No. 2652
MORCELLATOR PRODUCTS )
LIABILITY LITIGATION ) Case No. 2:15-md-2652
)
(This Document Relates to All Cases) )
)
)
DEFENDANTS' DAMAGES DISCOVERY TO PLAINITFF
Pursuant to Rule 26, 33, and 34 of the Federal Rules of Civil Procedure and Paragraph 5 of Scheduling Order No. 1, Defendants Ethicon, Inc., and its affiliates (collectively, "Ethicon"), by and through its undersigned attorneys, hereby requests that Plaintiff, respond to the following interrogatories in writing under oath and produce the documents and tangible things described herein, to the attention of Debbie Moeller, Esq. at the offices of Shook, Hardy, and Bacon L.L.P., 2555 Grand Blvd., Kansas City, MO 64108. Plaintiff's responses to this discovery is to be due thirty (30) days following the applicable deadline in Scheduling Order No. 1, as set forth above.
Responses to these Requests shall be signed affirming that, to the best of the signatory's knowledge, information, and belief formed after a reasonable inquiry, that the signatory has completed his/her document production.
INTERROGATORIES
DAMAGES INTERROGATORY NO. 1:
Describe all claimed expenses incurred as a result of the Procedure(s), including medical, non-medical, out of pocket, lost income or other special or Procedural damages and identify any person who has knowledge of the nature or amount of each such damage or expense, including all insurance companies and all federal or state governmental agencies (i.e., Medicare, Medicaid, etc.) that have paid any amount for such medical expenses.
DAMAGES INTERROGATORY NO.2:
Identify any individual to whom you provide financial support and the financial support provided.
REQUESTS FOR PRODUCTION
1. Documents that relate, refer, or pertain to your responses to Damages Interrogatories Nos. 1 and 2.
2. Authorizations for the appropriate carriers to obtain the insurance policies issued to you covering you for any losses resulting from the Procedure(s), including all endorsements, amendments and notices issued or relating to each policy.
3. Documents that relate, refer, or pertain to claims for damages resulting from the Procedure(s), including but not limited to:
a. documents evidencing or relating to any actual expenses, if any, which you contend were or will be incurred as a result of the Procedure(s);
b. documents constituting, evidencing or relating to claims for lost income or compensation of any kind allegedly incurred as a result of the Procedure(s), if making a claim for lost wages;
c. documents constituting, evidencing or relating to any claim for temporary or permanent impairment of future earning capacity, if any, allegedly resulting from the Procedure(s), if making a claim for lost wages;
d. documents constituting, evidencing or relating to any claim for permanent injuries, if any, allegedly resulting from the Procedure(s).
