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Randal W. Carrigan and Sherry Carrigan v. K2m

May 10, 2011

RANDAL W. CARRIGAN AND SHERRY CARRIGAN, PLAINTIFFS,
v.
K2M, INC., DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:

E-FILED

Tuesday, 10 May, 2011 03:29:59 PM

Clerk, U.S. District Court, ILCD

OPINION

This matter comes before the Court on Plaintiffs Randal W. Carrigan and Sherry Carrigan's (collectively Carrigans) Second Amended Motion to Compel Discovery and Application to Take the Deposition of Mike Barrus Out of Time (d/e 51) (Motion to Compel); Plaintiffs' Motion for a Sixty Day Extension of Time on All Scheduling Order Deadlines to Allow a Ruling on Plaintiffs' Motion to Compel (Document Number 51) and Allow Further Testing and Examination of the Subject Product and Allow Plaintiffs' Experts to Supplement Their Rule 26 Expert Reports (d/e 58) (Motion for Extension) (collectively Carrigan Motions); and Defendant K2M, Inc.'s (K2M) Emergency Motion to Compel K2M Hardware for Non-Destructive Inspection (d/e 60) (K2M Motion). The parties have certified that they have attempted in good faith to resolve these matters without court action. Fed. R. Civ. P. 37(a)(1). For the reasons set forth below, the Carrigan Motions and the K2M Motion are ALLOWED in part.

BACKGROUND

The Carrigans allege products liability claims against K2M arising from screws that fractured in a Mesa Spinal System designed and distributed by K2M that had been implanted into Randal Carrigan's spine. Specifically, the threads in the screws fractured. The threads on the screws were based on the "thread form and geometry" of the screws used in the Denali Spinal System, also designed and distributed by K2M. Motion to Compel, Exhibit 7, Excerpt of the 510k Application to Food and Drug Administration; Deposition of Richard Woods, at 183 (both exhibits filed under seal at d/e 54). The Carrigans have requested documents from K2M related to the Denali Spinal System, but K2M has objected based on relevance and undue hardship. Motion to Compel, Exhibit 6, Defendant's Response to Plaintiffs' Fourth Request to Produce. The Carrigans now ask this Court to compel production of these documents.

The Carrigans also ask the Court to compel K2M to compel an unredacted copy of the meeting minutes of the Board of Scientific Advisors. K2M produced a redacted copy that redacted a portion of the minutes that discuss the Denali Spinal System. The Carrigans want these minutes produced in discovery. K2M objects on the same grounds of relevance and undue burden.

The Carrigans also ask for permission to take the deposition of K2M employee Mike Barrus out of time. The Carrigans submitted a interrogatory to K2M for the identity of, "Defendant's 30(b)(6) witness most knowledgeable regarding the specifications for manufacturing of the subject product, including screws." Motion to Compel, Exhibit 1, Defendant's Answers to Plaintiffs' Interrogatories, ¶ 17. K2M responded, "ANSWER: Rich Woods, Senior Vice President of Engineering, K2M, Inc., . . . ." Id. (emphasis in the original). The Carrigans then noticed Woods' deposition under Rule 30(b)(1). Woods' deposition was taken on November 9, 2010. Motion to Compel, Exhibit 2, Woods Deposition, at 1. During the deposition, Woods discussed the fact that the Mesa Spinal System was manufactured for K2M by Hammill Manufacturing Company. Id. at 85. Woods was asked about the number of cutting movements used to cut the screws at issue. Woods said, "I don't know the answer to that." Id. Woods then said that Mike Barrus might know. Woods stated that Barrus, "is the engineer who designed the screw, and he has been to Hammill more often than the rest of us have." Id.

On January 7, 2011, the Carrigans' counsel sent a letter to K2M's counsel requesting the deposition of Barrus. Motion to Compel, Exhibit 3, Letter from Thomas J. Steece to Donna Fernandez dated January 7, 2011. K2M's counsel responded by letter dated January 11, 2011. Motion to Compel, Exhibit 4, Letter from Carmel M. Cosgrave to Thomas J. Steece, dated January 11, 2011. K2M's counsel did not object to the deposition as long as it was taken in Leesburg, Virginia, where K2M's offices are located. On January 13, 2011, the Carrigans' counsel told K2M's counsel that the Carrigans no longer wanted to take Barrus's deposition. Motion to Compel, Exhibit 5, Letter from Thomas J. Steece to Carmel Cosgrave dated January 7, 2011.

On January 20, 2011, K2M's counsel renewed the request for the deposition of Barrus. On January 21, 2011, counsel for K2M again agreed to the deposition of Barrus, but only if: (1) the Carrigans provided a list of topics to be covered in the deposition; (2) the Carrigans held the deposition in Virginia; and (3) the Carrigans do not seek to recover the costs of the deposition. The Carrigans refused the last condition. They stated that they would seek costs if they were the prevailing party in this matter. Defendant's Response to Plaintiffs' Motion to Compel, Exhibit 3, Email from Michael Velez to Donna Fernandez dated January 25, 2011. The deadline for fact discovery passed on January 31, 2011, without the parties resolving their dispute of the costs of the deposition. See Text Order entered October 7, 2010. The Carrigans now ask the Court to allow them to take the deposition of Barrus after the deadline.

The parties have conducted two destructive tests on the Mesa Spinal System screws at issue. The parties failed to properly complete the agreed upon testing protocol at both of the tests. The Carrigans' experts want to conduct additional destructive testing. The Carrigans ask for an additional sixty days to complete another destructive test. K2M objects on the grounds that the Carrigans could have completed the testing before the deadline for such testing ran on March 31, 2011.

The K2M Motion asks for an order compelling the Carrigans to allow K2M's expert to conduct a non-destructive inspection of the screws and hardware from the Mesa Spinal System at issue. The screws and hardware are currently in the possession of the Carrigans' attorney in Oklahoma City, Oklahoma. K2M's expert wants to conduct the inspection at the expert's laboratory in Fairfield, Ohio. The Carrigans have stated that they will allow the transportation of the screws and hardware to Fairfield, Ohio, only if: (1) the Defendant or Defendant's counsel personally transport the screws and hardware from the Carrigans' counsel Oklahoma City to Fairfield and personally return them to the Carrigans' counsel; or (2) K2M insures the screws for $3,000,000.00 against loss during transit. K2M would not agree to either condition. See K2M Motion, ...


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