In re New England Compounding Pharmacy, Inc.

IN RE: NEW ENGLAND COMPOUNDING PHARMACY, INC. PRODUCTS LIABILITY LITIGATION This Document Relates To: All Actions

MDL No. 13-2419-FDS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

November 13, 2013

ORDER ON MOTIONS TO QUASH AND OBJECTIONS TO SUBPOENAS¹

Boal, M.J.

Various defendants and non-party entities have filed motions to quash and objections to discovery subpoenas served by the Plaintiff's Steering Committee ("PSC"). The District Court granted the motions to quash with respect to the medical records of non-plaintiffs and referred the remaining objections to this Court for resolution. See Docket Nos. 370, 396, 450, 521, 550. After careful consideration of all the arguments presented, this Court makes the following rulings.

I. FACTUAL AND PROCEDURAL BACKGROUND

This litigation involves claims for wrongful death and personal injury arising out of the administration of an injectable steroid, methylprednisolone acetate ("MPA"), manufactured bydefendant New England Compounding Pharmacy, Inc. ("NECC"). The complaints allege, in substance, that NECC produced contaminated MPA that led to serious fungal infections and, in some cases, death.

Lawsuits alleging death or injury based on contaminated MPA have been filed in multiple federal and state jurisdictions around the country, including the District of Massachusetts. In February 2013, the Judicial Panel on Multidistrict Litigation ("JPML") issued an order under 28 U.S.C. § 1407 transferring various federal-court proceedings to this Court for coordinated and consolidated pretrial proceedings. Docket No. 2. Subsequent orders of the JPML have transferred "tag-along" cases to this Court. In the meantime, NECC filed for bankruptcy protection. On June 12, 2013, the District Court granted the bankruptcy trustee's motion to transfer all personal injury tort and wrongful death cases (1) against NECC or any affiliated entity or individual pending in federal court, (2) against NECC or any affiliated entity or individual in the process of being removed from state court, and (3) pending in state courts in which any party has asserted a claim (including a claim for contribution or indemnity) against NECC or any affiliated entity or individual. Docket No. 176.

On June 21, 2013, the District Court issued an order granting the PSC leave to serve subpoenas and a qualified order regarding the protection of health information (the "Order Authorizing Subpoenas"). Docket No. 192. The District Court also issued an order providing for the central enforcement of subpoenas by this District Court. Docket No. 193.

The PSC issued approximately 90 subpoenas to pain clinics, doctors, and/or healthcare providers. Various defendants and non-party entities filed motions to quash and objections tothe discovery subpoenas served by the PSC.² In response to the objections, the PSC revised the scope of the subpoenas. See Docket Nos. 325-3; 464. The PSC also decided to forego record keeper depositions, unless unique circumstances require the deposition to take place.³ The District Court granted the motions to quash "to the extent that any relevant subpoena seeks to obtain patient medical records or other patient information as to individuals who are not parties to any action presently pending in this Court for the purpose of providing notice to possible claimants." Docket No. 370 at 3.⁴ The District Court referred the remaining objections to this Court for resolution. See Docket Nos. 370, 396, 450, 521, 550.

On August 6, 2013, the PSC filed a report and chart for the purpose of identifying the issues remaining for resolution. Docket No. 377. Some parties filed pleadings indicating their objections to the PSC's characterization of the outstanding issues. See Docket Nos. 378, 384. On August 15, 2013, the District Court entered a mediation order that provided for an opt-in procedure and a stay of discovery for those who opt-in. Docket No. 394. Some parties filed pleadings indicating that some of the issues had been resolved. See Docket No. 451.

The Court held a status conference on September 25, 2013. After hearing from the parties, and in order to facilitate the speedy and just resolution of the outstanding motions toquash and objections, the Court ordered the parties to confer in an attempt to provide the Court with a joint chart identifying the outstanding issues. Docket No. 455. The PSC filed a joint updated chart on October 16, 2013. Docket No. 514.⁵ Several clinics filed responses to the chart. See Docket Nos. 527-530, 532-533. The PSC filed a supplemental consolidated response and a revised chart of objections on November 5, 2013. Docket No. 544. One of the respondents filed a response to the PSC's supplemental consolidated response. Docket No. 548. The Court heard oral argument on November 7, 2013.

II. ANALYSIS

A. Jurisdiction

Title 28, United States Code, Section 1407, provides for the transfer of actions pending in different districts for the purpose of coordinated and consolidated pretrial proceedings. Section 1407(a) states, in relevant part: "When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings." 28 U.S.C. § 1407(a). "The meaning of 'pretrial proceedings' has been interpreted liberally to give the transferee district court control over any and all proceedings prior to trial." In re Neurontin Mktg., Sales Practices, and Products Liab. Litig., 245 F.R.D. 55, 57 (D. Mass. 2007) (citations omitted).

The scope of the MDL judge's authority is similarly broad. Title 28, United States Code,Section 1407(b) specifically grants district court judges in transferee courts "the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings."⁶ 28 U.S.C. § 1407(b). Accordingly, the MDL judge has the power to "compel production by an extra-district nonparty; enforce, modify, or quash a subpoena directed to an extra-district nonparty; and hold an extra-district nonparty deponent in contempt, notwithstanding the nonparty's physical situs in a foreign district where discovery is being conducted." United States ex rel. Pogue v. Diabetes Treatment Centers of Am., Inc., 444 F.3d 462, 468-469 (6th Cir. 2006); see also In re Neurontin Mktg., Sales Practices, and Products Liab. Litig., 245 F.R.D. at 58-59; In re Asbestos Products Liab. Litig., 256 F.R.D. 151, 154 (E.D. Pa. 2009); In re San Juan Dupont Plaza Hotel Fire Litig., 117 F.R.D. 30, 32 (D.P.R. 1987).

The powers of the transferee judge are plenary. In re San Juan Dupont Plaza Hotel Fire Litig., 117 F.R.D. at 32. "As an ordinary consequence of a transferee judge's additional duties, he may designate a United States magistrate to resolve non-dispositive civil motions," as the District Court did in this case. Id.

The goals of Section 1407(b) "are best served by applying the transferee court's interpretations of federal law, rather than being bound by the precedents of the subpoena-issuing court." In re Automotive Refinishing Paint Antitrust Litig., 229 F.R.D. 482, 486 (E.D. Pa. 2005). As one court has observed:

Section 1407 is designed to provide for the 'just and efficient conduct' of related cases filed in various federal districts by consolidating them for pretrial purposes before one court. The legislative history of § 1407 'makes it clear that [the statute's] remedial aim is to eliminate the potential for conflicting contemporaneous pretrial rulings by coordinate district and appellate courts in multidistrict related civil actions.' This purpose would be undermined if we were required to apply the precedents of each court issuing a discovery subpoena, rather than relying on the law of the transferee forum. Moreover, because '[d]iscovery disputes that arise in an MDL action are appealed to the circuit court in which the action originated," it is sensible for reasons of 'uniformity and intra-circuit consistency' to apply the law of the forum where the MDL action is being adjudicated. While the [sic] 'the law of [the subpoena-issuing] forum on a federal question . . . merits close consideration,' we conclude that it 'does not have stare decisis effect in a[n] [MDL] forum situated in another circuit."

Id. (internal citations omitted).

B. Standard Of Review

"Discovery procedures set forth in the Federal Rules of Civil Procedure seek to further the interests of justice by minimizing surprise at trial and ensuring wide-ranging discovery of information." Cartel Asset Mgmt. v. Ocwen Fin. Corp., No. 01-cv-01644, 2010 WL 502721, at *9 (D. Colo. Feb. 8, 2010) (citing United States ex rel. Schwartz v. TRW, Inc., 211 F.R.D. 388, 392 (C.D. Cal. 2002)). To that end, Rule 26(b) permits "discovery regarding any nonprivileged matter that is relevant to any party's claim or defense . . ." or discovery of any information that "appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b). Rule 26(b)(1) generally permits liberal discovery of relevant information. Baker v. Liggett Group, Inc., 132 F.R.D. 123, 125 (D. Mass. 1990). As the Supreme Court has instructed, because "discovery itself is designed to help define and clarify the issues," the limits set forth in Rule 26 must be "construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

There are limits, however, on the scope of discovery. A court must limit discovery if it determines that the discovery sought is (1) unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (3) the...