McCoy v. DePuy Orthopaedics, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 BARBARA MCCOY, Case No.: 22-CV-2075 JLS (KSC) 12 Plaintiff, ORDER (1) GRANTING 13 v. DEFENDANTS’ MOTION FOR PERMISSION TO LODGE 14 DEPUY ORTHOPAEDICS, INC.; DOCUMENTS FOR IN CAMERA DEPUY PRODUCTS, INC.; 15 REVIEW IN SUPPORT OF THEIR DEPUY SYNTHES, INC.; MOTION TO DISQUALIFY 16 JOHNSON & JOHNSON; PLAINTIFF’S EXPERT STEPHEN JOHNSON & JOHNSON SERVICES, 17 LI AND (2) RESETTING HEARING INC.; and JOHNSON & JOHNSON DATE FOR DEFENDANTS’ 18 INTERNATIONAL, MOTION TO DISQUALIFY 19 Defendants. (ECF Nos. 44 & 85) [20] 21 Presently before the Court is Defendants DePuy Orthopaedics, Inc.; DePuy 22 Products, Inc.; DePuy Synthes, Inc.; Johnson & Johnson; Johnson & Johnson Services, 23 Inc.; and Johnson & Johnson International’s (collectively, “Defendants”) Motion for 24 Permission to Lodge Documents for in Camera Review (“Mot. to Lodge,” ECF No. 85). 25 Also before the Court are Plaintiff Barbara McCoy’s Opposition to (“Opp’n,” ECF No. 86) 26 and Defendants’ Reply in Support of (“Reply,” ECF No. 89) the Motion to Lodge. Having 27 considered the Parties’ arguments and the applicable law, the Court GRANTS Defendants’ 28 Motion to Lodge and RESETS the hearing on the underlying motion. 1 BACKGROUND 2 Defendants contend that Dr. Stephen Li has consulted as an expert for DePuy1 since 3 “the early 1990s and [has] served in a consulting role for the Pinnacle litigation [since] 4 October 2010.” Disqual. Mot. at 2; Declaration of Kenneth H. Inskeep (“Inskeep Decl.,” 5 ECF No. 44-1) ¶¶ 4–5. They allege that DePuy has paid him $23,500 for expert reports 6 and testimony relating to Pinnacle metal-on-metal (“MoM”) hip replacement cases. 7 Inskeep Decl. ¶¶ 5, 17. Defendants claim that they reached out to Dr. Li to consult on the 8 Pinnacle MoM cases and that Dr. Li disclosed that he had been contacted by a plaintiff’s 9 personal injury firm to serve as an expert witness but had not received any confidential 10 information. Id. ¶ 7. 11 Defendants assert that after they retained Dr. Li as a MoM litigation consultant, 12 defense counsel met with him on three occasions, during which they discussed “MoM 13 devices generally, including the DePuy Pinnacle device (not just the [Articular Surface 14 Replacement (“]ASR)[”) device], and [Mr. Inskeep’s] mental impressions and potential 15 strategies for defending MoM cases.” Id. ¶¶ 8, 10, 12–13. Upon Mr. Inskeep’s request 16 that Dr. Li critique the report of Plaintiff’s causation expert, Al Burstein, Dr. Li declined 17 in light of his professional relationship with said expert, and Mr. Inskeep decided to 18 suspend DePuy’s consulting relationship with Dr. Li. Id. ¶ 15. However, Mr. Inskeep 19 claims to have understood that Dr. Li would continue to consult with DePuy as an expert 20 in Pinnacle matters. Id. Dr. Li ceased his consulting work on DePuy’s behalf in Pinnacle 21 litigation in August 2015, but Defendants assert that Dr. Li never was terminated formally 22 / / / [24] 25 1 Defendants’ Motion to Disqualify Plaintiffs’ Experts Dana Medlin and Stephen Li (“Disqual. Mot.,” EFC No. 44) simply refers to “DePuy” rather than any specific DePuy entity or entities; this Order 26 accordingly does the same. Moreover, Dana Medlin has not been designated as an expert in this matter, and accordingly this Order addresses only the issues concerning Dr. Li. See Opposition to Motion to [27] Disqualify Plaintiff’s Expert Stephen Li (“Opp’n to Disqual. Mot.,” ECF No. 69) at 2 n.1. Finally, in 28 citing to the briefs in this matter, the Court refers to the blue numbers stamped in the upper righthand 1 as a consulting expert and that they understood he would continue to be available to them 2 to consult as an expert in Pinnacle matters. Id. 3 Thereafter, beginning in 2021, Dr. Li was retained by counsel for various plaintiffs 4 in the Pinnacle MoM multidistrict litigation (the “MDL”), of which the present action was 5 a part. See Declaration of Dr. Stephen Li (“Li Decl.,” ECF No. 69-3) ¶ 10. Plaintiff 6 designated Dr. Li as her expert witness on general and specific causation in the present 7 case, and she served Defendants with a report authored by Dr. Li in July 2022. Opp’n to 8 Disqual. Mot. at 2–3. Due to travel restrictions, Dr. Li is Plaintiff’s only expert on specific 9 causation. See id. Dr. Li, contrary to Defendants’ assertions, claims to have never been 10 formally employed by DePuy and does not recall any significant discussions focused on 11 MoM Pinnacle products or litigation during meetings with Mr. Inskeep. Li Decl. ¶ 10. 12 Additionally, Dr. Li does not believe that any invoices for his consulting services were 13 related to MoM devices. Id. ¶ 16. 14 On December 16, 2022, prior to the transfer of this action from the MDL court to 15 this Court, Defendants filed their Disqualification Motion, which is now fully briefed. See 16 ECF Nos. 44, 69, 78, 82. Less than a week prior to the hearing scheduled for oral argument 17 concerning the Disqualification Motion, Defendants filed the instant Motion to Lodge. See 18 generally Mot. to Lodge; ECF No. 77. The Motion to Lodge, filed four months after the 19 initial Motion to Disqualify and nine months after Plaintiff served Dr. Li’s expert report on 20 Defendants, seeks to submit for in camera review attorney memoranda, consulting expert 21 invoices, and e-mails referenced in Mr. Inskeep’s Declaration in support of the 22 Disqualification Motion. Mot. to Lodge at 1. 23 LEGAL STANDARD 24 The Supreme Court has approved the use of in camera review to preserve privileged 25 information where the review of such evidence is necessary to protect attorney-client 26 privilege and attorney work product. See United States v. Zolin, 491 U.S. 554 , 568–69 27 (1989). The protection of privileged documentary evidence “is essential [for] a lawyer [to] 28 work with a certain degree of privacy, free from unnecessary intrusion by opposing parties 1 and their counsel.” United States v. Nobels, 422 U.S. 225, 237 (1975) (quoting Hickman 2 v. Taylor, 329 U.S. 495 , 510–11 (1947)). In assessing whether to accept documentary 3 evidence for in camera review incident to a motion to disqualify an expert, “[t]he court is 4 guided by considerations of ‘fundamental fairness.’” Cecala v. Newman, No. CV04-26125 PHX-NVW, 2007 WL 9724834 , at *5 (D. Ariz. Mar. 26, 2007) (citing Hewlett-Packard 6 Co. v. EMC Corp., 330 F. Supp. 2d 1087, 1094 (N.D. Cal. 2004)). 7 ANALYSIS 8 It is undisputed that, on a motion to disqualify, whether the target of said 9 disqualification is an expert witness or counsel, a court may review relevant materials in 10 camera. See, e.g., W. Sugar Coop. v. Archer-Daniels-Midland Co., 98 F. Supp. 3d 1074 , 11 1086 (C.D. Cal. 2015) (considering in camera evidence on motion to disqualify counsel); 12 Radware, Ltd. V. A10 Networks, Inc., No. C-13-02021-RMW, 2014 WL 116428 , at *1 13 (N.D. Cal. Jan. 10, 2014) (granting motion for in camera review of motion to disqualify 14 counsel); Life Techs. Corp. v. Biosearch Techs., Inc., No. C-12-00852 WHA JCS, 2012 15 WL 1604710 , at *7 (N.D. Cal. May 7, 2012) (considering in camera submission in ruling 16 on motion to disqualify expert witness); In re Bard IVC Filters Prod. Liab. Litig., No. MDL 17 15-02641-PHX DGC, 2019 WL 13205592 , at *4 (D. Ariz. Jan. 30, 2019) (noting that 18 defendants seeking disqualification of expert witness “could have proposed an in camera 19 submission, but they have not done so”). 20 Here, however, the issue is the timeliness of Defendants’ request for in camera 21 review.2 As the Ninth Circuit has recognized, untimely submission of supplementary 22 materials or disclosures can be overcome by substantial justification. See W. All. Bank v. 23 Jefferson, 119 F. Supp. 3d 961, 967 (D. Ariz. 2015). Defendants contend their failure to 24 submit these documents as exhibits to their initial Disqualification Motion was in the 25 interest of protecting privileged attorney work product. Reply at 3. Plaintiff, meanwhile, [28] 2 Plaintiff does not appear to challenge that the documents in question are privileged attorney work product 1 relies on Winkelmeyer v. DePuy Orthopaedics, Inc., another MDL case in which the 2 Disqualification Motion also was filed, to contend that the documents submitted for in 3 camera review were available at the time Defendants moved for disqualification; thus, the 4 Motion to Lodge must be denied on timeliness grounds. See Opp’n at 3 (citing Case No. 5 2:13-cv-04058-NKL, 2023 WL 2974480 (W.D. Mo. Apr. 17, 2023)). 6 Winkelmeyer, however, is distinguishable. There, the court had already ruled on the 7 motion to disqualify Dr. Li prior to the submission of documents for in camera review as 8 part of a motion for reconsideration. See generally Winkelmeyer, 2023 WL 2974480 . The 9 court found the submission of documents that existed at the time the motion to disqualify 10 had been decided did not satisfy the limited circumstances meriting reconsideration. See [11] id. In the present case, the underlying Disqualification Motion is still pending and the 12 submission of Defendants’ Motion to Lodge predates a ruling thereon. To be clear, the 13 Court does not condone the failure to submit supporting documents at the time of the filing 14 of the initial Disqualification Motion. Defendants could and should have sought in camera 15 review of the relevant materials at that time. Nonetheless, the delay here, and the 16 procedural posture of this matter, is unlike Winkelmeyer. As the Disqualification Motion 17 has yet to be decided, Defendants’ present Motion to Lodge does not provide a “second 18 bite at the apple,” but rather a means of providing further support for their Disqualification 19 Motion. Accordingly, given the importance of protecting the integrity of the judicial 20 process and preventing conflicts of interest, and balancing those weighty concerns against 21 the minimal prejudice to Plaintiff,3 the Court is inclined to review Defendants’ submission 22 to better inform its decision of whether to disqualify Dr. Li. 23 Plaintiff also points to the statement in Winkelmeyer that “‘nothing [in] the in camera 24 submission suggests that it was objectively reasonable for DePuy to conclude it had a 25 confidential relationship with Dr. Li in connection with Pinnacle metal-on-metal devices’” [26] 27 3 There is currently no trial date set in this matter, eliminating any concerns that the present Motion comes 28 “on the eve of trial,” see Cecela, 2007 WL 9724834 at *5, and all Parties will have the opportunity to be 1 ||as support for her request that the Court deny the Motion to Lodge. Opp’n at 2 (quoting 2 || Winkelmeyer, 2023 WL 2974480 , at *2). However, in response, Defendants cite to the 3 ||transcript from the hearing on the same Disqualification Motion in Sheehy v. DePuy 4 || Orthopaedics, Inc., another MDL case. See Reply at 2—6 (citing id. Ex. 1 (“Sheehy Tr.,” 5 || ECF No. 89-1 (Transcript of Motion Hearing, No. 1:22-cv-03370-RMR (D. Colo. May 11, 6 2023), ECF No. 141))). In Sheehy, the court determined that it was reasonable for DePuy 7 || to believe that it had a confidential relationship with Dr. Li. See Sheehy Tr. at 87:15. The 8 ||court accordingly granted the Disqualification Motion. See Courtroom Minutes at 3, 9 || Sheehy, No. 1:22-cv-03370-RMR (D. Colo. May 4, 2023), ECF No. 139. Defendants have 10 || also filed a Notice of Supplemental Authority, appending a May 18, 2023 order in another 11 from the same MDL, England v. DePuy Orthopaedics, Inc., which also granted the 12 || Disqualification Motion. See ECF No. 93-1 (Civil Minutes—General, Case No. 2:23-cv13 |}00040-GW-(JCx) (C.D. Cal. May 18, 2023), ECF No. 75) (under seal). Given the 14 inconsistent decisions on the Disqualification Motion in other cases from the same MDL, 15 Court finds that the interests of a fully informed decision ultimately outweigh 16 || Defendants’ foot-dragging in submitting their supporting documents. Accordingly, the 17 || Court exercises its discretion to review the proposed in camera submission. 18 CONCLUSION 19 In light of the foregoing, the Court GRANTS Defendants’ Motion for Permission to 20 || Lodge Documents for in Camera Review (ECF No. 85). Defendants SHALL LODGE 21 documents for which they seek in camera review on or before June 8, 2023. The Court 22 || further RESETS the hearing on the Disqualification Motion (ECF No. 44) and choice of 23 || law issues for 1:30 p.m. on June 22, 2023, in Courtroom 4D of the Edward J. Schwartz 24 || United States Courthouse. 25 IT IS SO ORDERED. 26 || Dated: June 5, 2023 je te JL, eae iteb7 on. Janis L. Sammartino 3g United States District Judge