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In re Asbestos Products Liability Litigation

June 26, 2009

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI)


The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge

CIVIL ACTION NO. MDL 875

This Document Relates To: (Oil Rig Cases) (See Exhibit A - attached case list)

MEMORANDUM OPINION

I. Introduction

Presently before the Court is the "Renewed Combined Motion and Brief to Compel Dr. Jay T. Segarra's Production of Documents and Response to Subpoena" (the "Renewed Motion") filed by Defendant Union Carbide Corporation ("Union Carbide") on June 4 and 5, 2009 (09-63215, Doc. 9),*fn1 in which Defendants ConocoPhillips Company and Oilfield Service and Supply Company have joined (collectively "Defendants") (09-63215, Doc. 12), and the response thereto (09-63215, Docs. 18-19) from the plaintiffs in the cases on the attached list (collectively "Plaintiffs"). The Renewed Motion incorporates the "Motion for Reconsideration of the Remedy Provided for in the Court's Order to Compel Dr. Segarra, Dr. Rao, and Dr. Bernstein" filed on March 12, 2009 (01-md-875, Doc. 5886) and "Certain Defendants Additional Briefing Regarding the Consulting Expert Privilege and the Exceptional Circumstances Presented by the Litigation Work" filed on March 20, 2009 (01- md-875, Doc. 5954), both filed by Forman Perry (counsel for Union Carbide), and following upon Judge Robreno's Order of February 24, 2009 directing Dr. Jay Segarra "to produce all documents and information relating to diagnosing reports or opinions for Plaintiffs with claims currently pending in MDL 875 within 20 days." (01-md-875, Doc. 5815). The Renewed Motion addresses Judge Robreno's Order only with respect to Dr. Segarra in these oil rig cases*fn2 where he has been identified as the diagnosing expert. Defendants seek the entry of an Order directing Dr. Segarra to produce the documents and information pertaining to his litigation screening practice without any limitation. For the reasons set out below, we GRANT in part and DENY in part Union Carbide's motion subject to the limitations set out in this memorandum and our accompanying Order, filed on June 25, 2009 (09-mc-103, Doc. 2).

II. Factual and Procedural Background

On December 19, 2005, Dr. Jay T. Segarra was served with a subpoena duces tecum (the "Subpoena") issued by the Clerk of the Court for the Eastern District of Pennsylvania in connection with MDL-875. The Subpoena, which calls for the production of 27 categories of documents, was the subject of Judge Robreno's February 24, 2009 Order and Memorandum Opinion. In re: Asbestos Prods. Liab. Litig. (No. VI), 256 F.R.D. 151 (E.D. Pa. Feb. 24, 2009). By that Order, Dr. Segarra,and two other doctors not related to this motion, was ordered "to produce all documents and information relating to diagnosing reports or opinions for Plaintiffs with claims currently pending in MDL 875 within 20 days." Id. at 158. On May 29, 2009, noting that the plaintiffs on whose behalf a Daubert challenge had been advanced were no longer parties to the litigation, the Court denied Defendants' motion for reconsideration of that Order as moot. (Order Den. Def.'s Mot. for Recons., May 29, 2009, 01-md-875, Doc. 6275). Defendants were instructed to file plaintiff-specific motions to compel Dr. Segarra's compliance with the Subpoena if they chose to do so. Union Carbide then filed the Renewed Motion pertaining to these 200 (and more) cases where Dr. Segarra has been identified by Plaintiffs as the diagnosing physician. (09-63215, Doc. 9)

This motion has been referred to this United States Magistrate Judge pursuant to the Court's amended Order of Referral referring these cases to us "for final disposition of all pretrial matters not dispositive of a party's claim or defense pursuant to 28 U.S.C. 636(b)(1)(A) and Fed.R.Civ.P 72(a)." (See 09-63215, Doc. 6). As such, the motion was properly before us and we, in turn, ordered that any response to the motion be filed on or before June 17, 2009. (See 09-63215, Doc. 14). Plaintiffs filed a timely response on that date. (See 09-63215, Doc. 18). The motion is now ripe for our review.

III. Discussion

We consider the parties' papers within the confines of MDL-875 Judge Robreno's February 24, 2009 Memorandum and Order which granted in part and denied in part certain Defendants' motions to compel production of documents and certain Plaintiffs' motion to quash. In that memorandum, Judge Robreno directed that Dr. Segarra produce all "documents related to diagnoses of asbestos related conditions relied upon by Plaintiffs in MDL 875." In re: Asbestos Prods. Liab. Litig. (No. VI), 256 F.R.D. at 152 (emphasis added). Thus the question effectively before us at this time is the extent to which the documents in the possession or under the control of Dr. Segarra can be said to be "related to diagnoses of asbestos related conditions relied upon by Plaintiffs in MDL 875." We must determine whether this means that production is limited only to those documents and information specifically pertaining to individuals who are plaintiffs in the MDL litigation.

Plaintiffs assert that it is. Defendants assert that it is not so limited.

We do not read Judge Robreno's Order in the limiting manner suggested by Plaintiffs. We note that, among the definitions set out in The American Heritage Dictionary of the English Language, Fourth Edition, for "relate" and "related," are "being connected; associated" and "to have connection, relation, or reference." See also Bobb v. United States AG, 458 F.3d 213, 219 (3d Cir. 2006) (quoting Webster's Third New International Dictionary (Unabridged) 1916 (1991)) ("The term 'relate' means 'to show or establish a logical or causal connection between.'"). This reading is consistent with the view taken by the Court in prior stages of this litigation in ordering production of all screening/litigation records of the challenged doctor. (See, e.g., Weiner, J. Order of March 19, 1999, 01-md-875, Doc. 2576; Giles, J. Order of February 12, 2007, 01-md-875, Doc. 4621; Giles, J. Order of October 25, 2007, 01-md-875, Doc. 4924; Giles, J. Administrative Order 12, May 31, 2007, 01-md-875, Doc. 4691; Giles, J. Order of April 24, 2008, 01-md-875, Doc. 5158). In holding that all of Dr. Segarra's screening and litigation documents must be produced, we merely conclude that these documents are "related to" MDL-875 claims. In re: Asbestos Prods. Liab. Litig. (No. VI), 256 F.R.D. at 152.

Additionally, Fed.R.Civ.P. 26(b) itself provides for broad-based discovery "regarding any non-privileged matter that is relevant to any party's claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." See also Lease v. Fishel, 07-CV-0003, 2009 U.S. Dist. LEXIS 29305, *13 (M.D. Pa. Apr. 3, 2009). The rule likewise broadly provides that "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Fed.R.Civ.P. 26(b). We believe such good cause exists here.

Defendants have raised serious questions about Dr. Segarra's practices and methodology which, if proven, could have an impact upon his qualification as an expert in these cases. (See "Certain Defendants Additional Briefing Regarding the Consulting Expert Privilege and the Exceptional Circumstances Presented by the Litigation Work," 01-md-875, Doc. 5954). We agree that certain of these questions such as the number of patients screened and the rate of positive diagnoses found could well be factors to be considered in determining the methodology and screening practices which underlie the doctor's diagnoses. (See Defs. Mot. for Recons., March 12, 2009, 01-md-875, Doc. 5886 at 3). While we draw no conclusions about the merit of the allegations appearing in Defendants' papers, we are satisfied that they justify broader discovery.

Additionally, Defendants have brought our attention to the fact that that Dr. Segarra filed with the Court his own internal audit of diagnoses rendered between 2003 and 2005 (Segarra Resp. to Defs. Mot. to Exclude, September 16, 2006, 01-md-875, Doc. 4536). We accept Defendants' assertion that the introduction of this internal audit also justifies a more extensive evaluation of his litigation screening process and methodology. (See Defs. Mot. for Recons., March 12, 2009, 01-md- 875, Doc. 5886 at 16).

For these reasons, we conclude from the submissions of the parties that the files of all those persons who were screened for possible litigation by Dr. Segarra or his office, consistent with Judge Robreno's February 24 Order, are "related to" MDL-875, even if the individuals involved are not parties to cases in the MDL. They are thus discoverable under Fed.R.Civ.P 26(b), and must be produced.

On the other hand, it is not the Court's role to investigate alleged fraudulent practices of Dr. Segarra. Accordingly, we have denied this motion as it pertains to matters which go beyond a consideration of the manner and methodology utilized by Dr. Segarra in the litigation screening process.

Plaintiffs, in answering Defendants' motion for reconsideration, have raised concerns regarding the consulting expert privilege. (Pls.' Resp. to Defs.' Mot. for Recons., Mar. 19, 2009, 01-md-975, Doc. 5953 at 3). Counsel representing many MDL-875 plaintiffs argued that they had retained several doctors, including Dr. Segarra, to render second opinions on medical diagnoses.

Counsel would then use these opinions as a factor in determining whether or not they would pursue that individual's claim. Plaintiffs argued that Dr. Segarra's production of these plaintiff's medical records would result in a waiver of any consulting expert protections that they might have had over these documents.

The consulting expert privilege is derived from Fed. R. Civ. P. 26(b)(4)(B), which states that "a party may not [ordinarily], by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation... and who is not expected to be called as a witness at trial." When the consulting expert privilege is properly invoked, the expert's materials are discoverable only upon "showing exceptional circumstances under which it is impracticable for the [opposing] party to obtain facts or opinions on the same subject by other means." Fed. R. Civ. P. 26(b)(4)(B)(ii); see also Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 299 (E.D. Pa. 1980). Counsel for Plaintiffs contend that this discovery privilege applies to Dr. Segarra in certain, identifiable Plaintiffs' cases. Defendants claim that exceptional circumstances are present here justifying discovery of otherwise privileged materials.

It remains unclear to us, however, whether extraordinary circumstances in fact exist in these cases. Specifically, we have limited information providing the context within which we could make such a determination. Initially, we need to know the extent to which Dr. Segarra, or more specifically the patients and their lawyers, claim the privilege so we could start the process of making a more informed determination. Our Order reflects this position, and leaves open the question of the applicability of the privilege and/or the exceptions to it.

Having evaluated the arguments before us, the Court grants Union Carbide's motion to compel, within the following parameters. First, Dr. Segarra is compelled to produce his litigation screening documents. We conclude generally that they are "related to" the claims of Plaintiffs in MDL-875 who have named Dr. Segarra as a diagnosing physician.*fn3 Second, Dr. Segarra is required to provide the Court a list of lawyers that retained him as a consulting expert and the number of persons for whom he was ...


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