United States District Court, W.D. Pennsylvania
December 19, 2005.
ASHA L. SWAIN, M.D. and PRADIP K. SWAIN, M.D., Plaintiffs,
ENCORE MEDICAL CORP., and ENCORE ORTHOPEDICS, INC., Defendants.
The opinion of the court was delivered by: KIM GIBSON, District Judge
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiffs' Motion to
Compel Discovery (Document No. 12). Based upon a consideration of
Plaintiffs' Motion to Compel Discovery (Document No. 12) and
Memorandum of Law in Support of Their Motion to Compel Discovery
(Document No. 18), and upon consideration of Defendants' Response
to Plaintiffs' Motion to Compel Discovery (Document No. 16) and
Memorandum of Law in Support of Defendants' Response to
Plaintiffs' Motion to Compel (Document No. 17), and based upon
oral argument by means of a telephonic conference call on October
3, 2005 (Document No. 19) and the record in the case sub
judice, the Court shall grant Plaintiffs' motion in part for the
Jurisdiction is proper in the United States District Court for
the Western District of Pennsylvania pursuant to
28 U.S.C. § 1332, in that all parties to the above-captioned civil action are
citizens of different states. Specifically, Plaintiffs are
individuals who reside in Pennsylvania, and the Defendants,
Encore Medical Corporation, and Encore Orthopedics, Inc., are
Texas corporations with their principal place of business in Texas.
Furthermore, the subject matter in controversy exceeds the sum or
value of $75,000.00, exclusive of interest and costs.
FACTUAL AND PROCEDURAL BACKGROUND
On or about January 10, 2000, Asha L. Swain (hereinafter "Mrs.
Swain") had a total left knee replacement with an "Encore
Foundation Series posterior stabilized knee . . ." (Document No.
1, Exhibit 1, Plaintiffs' Complaint). The artificial knee joint
components, "which were manufactured, sold and distributed by
Encore in Pennsylvania" are alleged by Plaintiffs to be
"dangerously defective. . . ." Id. Specifically, on or about
June 26, 2002, Mrs. Swain felt her artificial left knee become
unstable, and she immediately visited her orthopedic physician.
The visit to her physician revealed that a stabilizing post in
her left knee had broken. Id. Consequently, on or about July
10, 2002, Mrs. Swain underwent another surgery to "revise the
left tibial polyethylene insert which had broken, [and to repair]
the delamination which had occurred. . . ." Id. A second Encore
artificial knee tibial insert was implanted into Mrs. Swain's
left knee. Id.
Following the replacement of the left tibial polyethylene
insert, Mrs. Swain continued to feel pain and soreness in her
left knee. Id. Eventually, gradual swelling and hemorrhaging
that succeeded the second knee operation revealed that Mrs.
Swain's left knee had become infected. Id.
On or about June 2003, Mrs. Swain underwent her third knee
surgery whereby the second artificial Encore left knee and all of
its components were removed. Id. An "artificial antibiotic
spacer" was implanted in place of the removed components. Id.
For the next several months, Ms. Swain received antibiotics
intravenously. Id. On or about August 19, 2003, Ms. Swain underwent her fourth
knee surgery. Id. The antibiotic spacer was surgically removed
from her left knee, and a total left knee replacement was
implanted. Id. However, due to the continued surgeries, Ms.
Swain is no longer a candidate for future knee replacement
Based upon the above-mentioned facts, the Plaintiffs filed the
following claims against the Defendants in the Court of Common
Pleas for Allegheny County: Count One-Negligence; Count
Two-Strict Liability in accordance with the Restatement of Torts,
2nd Ed. § 402(A); Count Three-Strict Liability:
Misrepresentation, § 402(B); Count Four-Breach of Warranties; and
Count Five Loss of Consortium (Pradip K. Swain v. Defendants).
Thereafter, the Defendants removed this civil action to the
United States District Court for the Western District of
Pennsylvania on July 21, 2004.
On or about November 23, 2004, this Court entered a case
management order, which set forth a discovery completion date of
June 30, 2005. (Document No. 8).
Thereafter, on May 26, 2005, the parties requested from the
Court an extension of the discovery deadline. The Court granted
the request, and the amended case management order set forth
August 30, 2005 as the date for discovery to be completed.
(Document No. 9).
On or about August 25, 2005, the Plaintiffs filed a Motion to
Compel Discovery. (Document No. 12). After receiving Defendants'
Response to Plaintiffs' Motion to Compel Discovery (Document Nos.
16 & 17), the Court held oral argument by means of a telephonic
conference call on October 3, 2005 wherein the parties addressed
the issues raised in Plaintiffs' Motion to Compel. (Document No.
19). The issues in dispute were taken under advisement, and those
issues are decided in this Memorandum Opinion. DISCUSSION
The Plaintiffs argue in their Motion to Compel that the
Defendants have failed to engage in discovery as required under
the Federal Rules of Civil Procedure. (Document Nos. 12 & 18).
Specifically, the Plaintiffs allege that they served a request
for production of documents upon the Defendants on January 25,
2005, and the Plaintiffs served a set of written interrogatories
upon the Defendants on February 21, 2005. Id. Plaintiffs argue
that the Defendants "refuse to provide any discovery to
[P]laintiffs until such time as [P]laintiffs capitulate to sign a
confidentiality agreement acceptable to the [D]efendant[s]."
(Document No. 12). The Plaintiffs assert that without leave of
Court, the Defendants cannot stay discovery proceedings.
Moreover, the Plaintiffs claim that Defendants have not timely
filed objections to these discovery requests, nor have the
Defendants timely filed a motion for a protective order pursuant
to the Federal Rules of Procedure.
Conversely, the Defendants assert that they have not required
the Plaintiffs to "capitulate" by signing a confidentiality
agreement; rather, the Defendants notified the Plaintiffs "as
early as March 10, 2005 that . . . [they] would require a
confidentiality agreements protecting the [D]efendants'
confidential information." (Document No. 16). Specifically, the
Defendants claim that the orthopedic devices and related products
that it designs and manufactures are trade secrets. Id. If
these trade secrets were inadvertently disseminated, it would
allow access by competitors to Defendants' proprietary
information and a market-place advantage. Id.
Based upon Defendants' assignation of the requested information
as "trade secret", Defendants forwarded to the Plaintiffs a
proposed confidentiality agreement, and the Plaintiffs responded
on March 28, 2005 by forwarding Plaintiffs' proposed
confidentiality agreement. Id. Subsequently, the Defendants claim that "[i]n an effort to move
the litigation forward, on May 4, 2005 [D]efendants promptly
responded by accepting, with very few changes, [P]laintiffs'
proposal." Id. However, Plaintiffs have not consented to the
The Federal Rules of Civil Procedure provide liberal discovery
rules which permit the requesting party to obtain even
inadmissible material, so long as it is not privileged and "is
relevant to the claim or defense of any party", and "[f]or good
cause the court may order discovery of any matter relevant to the
subject matter involved in the pending action."
Fed.R.Civ.P.26(b)(1). For instance, Federal Rules of Civil
Procedure 33 and 34 establish the procedure governing
interrogatories and requests for production of documents.
Specifically, Rule 33(b)(1) directs that "[e]ach interrogatory
shall be answered separately and fully in writing under oath,
unless it is objected to, in which event the objecting party
shall state the reasons for objection and shall answer to the
extent the interrogatory is not objectionable." See Nike, Inc.
v. Brandmania.com, Inc., 2002 WL 32348549, *1 (E.D.Pa. 2002);
Rade v. Transition Software Corporation, 1998 WL 126921, *2
(E.D. Pa. 1998). Rule 34(b) "requires that a party served with a
document request [must] either produce the requested documents
or else state a specific objection for each item or category
objected to." Nike, Inc., 2002 WL at *1 (citing to Rade, 1998
WL at *2) (emphasis added). If a party that is served with a
request for documents or a request for written interrogatories
fails to "respond adequately to either an interrogatory or
document request, the serving party may file a motion to compel
under Rule 37(a). Nike, Inc., 2002 WL at *1. Furthermore, Rule
37(d) provides as follows: Rule 37. Failure to Make Disclosure or Cooperate in
(d) Failure of Party to Attend at Own Deposition or
Serve Answers to Interrogatories or Respond to
Request for Inspection. If a party or an officer,
director, or managing agent of a party or a person
designated under Rule 30(b)(6) or 31(a) to testify on
behalf of a party fails . . . (2) to serve answers or
objections to interrogatories submitted under Rule
33, after proper service of the interrogatories, or
(3) to serve a written response to a request for
inspection submitted under Rule 34, after proper
service of the request, the court in which the action
is pending on motion may make such orders in regard
to the failure as are just. . . .
* * *
The failure to act described in this subdivision may
not be excused on the ground that the discovery
sought is objectionable unless the party failing to
act has a pending motion for a protective order as
provided by Rule 26(c).
Fed.R.Civ.P. 37(d) (emphasis added).
Rule 26(c) provides that a party from whom discovery is sought
may request from the Court an order protecting the confidential
information. Specifically, Rule 26(c)(7) provides that the court
may "for good cause shown . . . make any order which justice
requires to protect a party or person from annoyance,
embarrassment, oppression or undue burden . . . including . . .
that a trade secret . . . not be disclosed or disclosed only in a
designated way." Fed.R.Civ.P. 26(c)(7). Accordingly, the "court's
order may include terms precluding or limiting discovery and may
provide `that a trade secret or other confidential research,
development, or commercial information not be revealed or be
revealed only in a designated way. Rule 26(c)(8).'" Nike, Inc.,
2002 at *1.
In the case sub judice, the Court initially observes that the
Defendants have failed to properly seek this Court's protection
with regard to the Plaintiffs' discovery requests. Specifically,
the Defendants did not appropriately object to Plaintiffs'
requests, nor did the Defendants timely file a motion seeking an
order of protection from this Court. Consequently, the Court
notes that "[i]t is generally held that `failure to object to a
discovery request in a timely fashion constitutes waiver of the objection. Cf. 8 Wright & Miller, Federal
Practice and Procedure § 2173 at 544 (1970)." Northfleet Corp.
v. Consolidated Rail Corp., 1984 WL 2615 (E.D. Pa. 1984).
The Court also observes that the Plaintiffs have consented to a
confidentiality agreement which is evidence of their willingness
to provide Defendants with a reasonable degree of
confidentiality. In this case, where the parties failed to reach
a formal agreement regarding the confidentiality agreement, it
was incumbent upon the Defendants to follow the proper procedure
in requesting the Court's intervention.
Accordingly, the Court determines that based upon the
Plaintiffs' acceptance of a need for a confidentiality agreement
under the facts of this civil action, the Court shall grant the
Plaintiffs' Motion to Compel Discovery in part. Specifically, the
Defendants shall provide the Plaintiffs with the requested
discovery material, and the parties shall follow the terms of the
Plaintiffs' March 28, 2005 (Document No. 17, Exhibit B) proposed
An appropriate order follows. ORDER
AND NOW, this 19th day of December, 2005, upon
consideration of Plaintiffs' Motion to Compel Discovery (Document
No. 12) and Memorandum of Law in Support of Their Motion to
Compel Discovery (Document No. 18), and upon consideration of
Defendants' Response to Plaintiffs' Motion to Compel Discovery
(Document No. 16) and Memorandum of Law in Support of Defendants'
Response to Plaintiff's Motion to Compel (Document No. 17), and
based upon oral argument held before the Court on October 3, 2005
(Document No. 19) and in accordance with this Court's Memorandum
Opinion, IT IS HEREBY ORDERED that Plaintiff's Motion to Compel
Discovery is granted in part.
IT IS FURTHER ORDERED that the Defendants shall provide the
Plaintiffs with the requested discovery material within 30 days,
and the parties shall follow the terms of the Plaintiffs' March
28, 2005 (Document No. 17, Exhibit B) proposed confidentiality
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