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Ebert v. C.R. Bard, Inc.

United States District Court, M.D. Pennsylvania

April 7, 2014

MELISSA EBERT, Plaintiff
v.
C.R. BARD, INC., et al, Defendants

MEMORANDUM

WILLIAM W. CALDWELL, District Judge.

I. Introduction

This matter is before the court on the motion to quash subpoena (Doc. 1) filed by nonparty Frank Lynch, M.D. ("Dr. Lynch"). Plaintiff Melissa Ebert opposes the motion. For the reasons that follow, we will grant the motion and quash the subpoena.

II. Background

Plaintiff filed suit against C.R. Bard, Inc. and Bard Peripheral Vascular (collectively, "Bard") in the Eastern District of Pennsylvania, civil action no. 5:12-cv-01253-LS, to recover damages for personal injuries allegedly sustained as a result of a defective medical device. Plaintiff alleges that the inferior vena cava filter ("IVC fiter") implanted in her body, a device designed by Bard to prevent blood clots from traveling from the lower portions of the body to the heart and lungs, is defective and unreasonably dangerous because it cannot withstand the normal stresses associated with placement within the human body.

On May 1, 2013, Plaintiff served nonparty Dr. Lynch, an interventional radiologist employed by Penn State Milton S. Hershey Medical Center ("Hershey Medical Center"), with a subpoena to testify at a deposition on May 22, 2013, along with requests to produce twenty-one categories of documents at the deposition. (Doc. 1-1). Plaintiff's document requests are far-reaching in scope and not limited to a particular time frame. For example, Plaintiff requests "[a]ny and all documents, electronically store information (ESI), electronic media, and electronic data... relating or pertaining in any way to all communications with any Interventional Radiologists and/or other physicians concerning the use of [IVC filters]." ( Id. at 9).

On May 17, 2013, Dr. Lynch brought the matter before this court by filing a motion to quash the subpoena pursuant to Federal Rule of Civil Procedure 45. (Doc. 1). In support of his motion to quash, Dr. Lynch indicated that he has never treated Plaintiff and has no factual information regarding Plaintiff or her surgery at St Luke's Hospital as described in the civil action filed in the Eastern District of Pennsylvania. Dr. Lynch argued that the subpoena should be quashed for the following reasons: (1) the subpoena did not provide a reasonable time for compliance; (2) compliance with the subpoena would cause an undue burden based on the overly broad requests for production of documents; (3) compliance would require the disclosure of privileged, confidential, and proprietary commercial information; and (4) producing the requested documents would essentially require Dr. Lynch to disclose an expert report, even though he has not been retained to produce such a report. Dr. Lynch also requested that Plaintiff be ordered to pay the attorney's fees and costs associated with quashing the subpoena.

On May 20, 2013, the Court entered an order granting Dr. Lynch's motion on the "on the basis that the subpoena fails to allow a reasonable time for compliance." (Doc. 2 at 1). We also established a briefing schedule so the parties could address the remaining issues raised in the motion, including Dr. Lynch's request for attorney's fees. Following numerous extensions of time sought by the parties and granted by the court, Dr. Lynch filed a brief in support of the motion to quash on December 6, 2013. (Doc. 17). In this brief, Dr. Lynch expounds on the arguments raised in his initial motion, and indicates for the first time that the information subpoenaed is contained in electronic version on the computer server owned and maintained by the Hershey Medical Center. Dr. Lynch also indicates that he is not authorized to release information on this server.

Plaintiff filed her brief in opposition (Doc. 25) on February 19, 2014, disagreeing with the various positions advanced by Dr. Lynch. Plaintiff contends that Dr. Lynch should be required to produce the information he possesses which is relevant to Plaintiff's case, as well as hundreds of other product liability cases handled by her counsel and others regarding Bard's IVC filters.[1] Dr. Lynch filed a reply brief and supporting affidavit on March 14, 2014. (Docs. 26, 27). The matter is ripe for disposition.

III. Legal Standard

Federal Rule of Civil Procedure 45 governs the issuance of subpoenas, through which a party may seek discovery from a nonparty. Rule 45 requires, in pertinent part, that a subpoena "command each person to whom it is directed to... produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control. " Fed.R.Civ.P. 45(a)(1)(A)(iii) (emphasis added).

This subpoena power is not without limits, however, and "[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." Fed.R.Civ.P. 45(d)(1). To that end, courts must-on timely motion-quash or modify a subpoena that "subjects a person to undue burden." Fed.R.Civ.P. 45(d)(3)(A)(iv). When analyzing whether a subpoena places an undue burden on a nonparty, courts consider issues such as relevance, the requesting party's need for the documents, the breadth of the request, the time period covered, the particularity with which the documents are described, and the burden imposed in responding. Lindsay v. C. R. Bard, Inc., No. 1:MC-10-441, 2011 U.S. Dist. LEXIS 6531, *4 (M.D. Pa. Jan. 24, 2011) (citing Grider v. Keystone Health Plan Cent., Inc., No. 05-MC-40, 2005 U.S. Dist. LEXIS 44069, *26 (M.D. Pa. July 28, 2005)).

Courts are also required-on timely motion-to quash or modify a subpoena that "requires disclosure of privileged or other protected matter, if no exception or waiver applies." Fed.R.Civ.P. 45(d)(3)(A)(iii). Courts are permitted to quash or modify a subpoena if it requires the disclosure of either: (1) "a trade secret or other confidential research, development, or commercial information"; or (2) "an unretained expert's ...


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