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SWAIN v. ENCORE MEDICAL CORP.

December 19, 2005.

ASHA L. SWAIN, M.D. and PRADIP K. SWAIN, M.D., Plaintiffs,
v.
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 following reasons.

JURISDICTION

  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. Id.

  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 surgery. Id.

  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 ...


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