As a young associate, we worked for a short time with then soon-to-be-Judge Harvey Bartle. We remember that, although kind and very funny, then-lawyer Bartle had a no-nonsense approach to law practice and a keen ability to discern the correct answer, sweeping aside fluff and obstacles en route to what made sense. We were excited when his appointment to the federal bench was announced. A few months later, we even asked Judge Bartle to perform our wedding (we almost said, “asked him to marry us,” but that wasn’t going to come out right) and were disappointed to learn that he would be out of town for the big day.

And so we were pleased, but unsurprised, to observe that Judge Bartle authored the decision on which we report today. We are told that a Westlaw cite will be forthcoming, but you can find the decision and order, respectively, at Documents Nos. 288 and 289 in the Zostavax MDL, In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, E.D. Pa., MDL No. 2848, Civil Action No. 2:18-md-02848-HB. We have linked the documents here and here. We have blogged previously on the Zostavax MDL, and you can read those posts here.

Today’s opinion is a decision on Merck’s motion to dismiss 173 plaintiffs’ claims for fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, violations of state consumer fraud statutes, and on a motion by co-defendant McKesson (a distributor) to dismiss the entire complaint in each of the 173 cases. As he and transferor courts had in four earlier individual cases, Judge Bartle granted Merck’s motion to dismiss the fraud-based claims, including the consumer fraud claims, with prejudice, holding that none had been pled with the particularity required by Fed. R. Civ. P. 9(b), despite several opportunities to amend. Judge Bartle stated. “Each of the 173 complaints is full of boilerplate language unrelated to the individual case and is the antithesis of how a proper federal complaint should be drafted. The one-size-fits-all approach of plaintiffs’ counsel produced allegations that are absurd on their face as to every plaintiff.” Opinion, at 2. These absurdities included allegations that plaintiffs “were induced to obtain a Zostavax vaccination by advertisements that began running years after plaintiffs were inoculated.” Id. at 3. Judge Bartle commented, “Plaintiffs’ counsel has habitually made such improper allegations, and the court has previously granted motions to dismiss nearly identical claims with prejudice,” id., and that, “[d]espite the court’s strong language chastising plaintiffs’ counsel” in those decisions, “counsel [had] continue[d] its vexatious behavior.”   Id. In light of those earlier decisions, the defendants had asked the plaintiffs’ counsel to dismiss these claims from the 173 cases, but plaintiffs’ counsel refused. The court “reiterated that such behavior can only be designed to waste the time and resources of the court and opposing counsel.

With respect to McKesson’s motion to dismiss the entire complaints in each of the 173 cases, Judge Bartle dismissed the fraud-based claims with prejudice, and the remaining counts without prejudice “on the ground that plaintiffs have failed to satisfy the requirements of Rule 8(a) of the Federal Rules of Civil Procedure,” id, by filing complaints in which the “deficiencies” were “manifest” and that did not contain “a short and plain statement of the claim showing that” the plaintiffs were “entitled to relief.” Id. The court also, sua sponte, dismissed the remaining claims without prejudice as to Merck, to avoid the “unmitigated confusion” that would result if different complaints were pending against the two defendants. Id. at 4. In closing, the court “urge[d]” plaintiffs’ counsel “not to repeat the same behavior here with respect to any future filings” in the MDL. Id. at 4-5.

But that wasn’t Judge Bartle’s final punch. In his separate Pretrial Order (the second of our linked documents), the judge ordered that re-filed amended complaints not exceed 40 pages. He then called out a plaintiffs’ firm by name, ordering that firm never to file another complaint or amended complaint longer than 40 pages and stating that any overlength pleading would be dismissed “without prejudice on [the court’s] own motion.” Pretrial Order No. 172, at 2.

We spend much of our professional life in the largely-unchecked world of MDL “master complaints” that list dozens and dozens of possible claims, and of plaintiffs’ lawyers who “incorporate” every single claim into every single short-form complaint filed on behalf of an individual plaintiff. Facilitating the MDL “cattle call” mentality in which plaintiffs’ firms assemble “inventories” of hundreds or thousands of cases without ever meeting the individual plaintiffs, this regime has never made a bit of sense and has allowed plaintiffs’ complaints to become procedural exercises lacking all significance. It has also permitted cases to remain pending for years and years during which no one – least of all the plaintiffs themselves – have any idea what the “real” claims are, let alone whether any claim has merit. We have lost track of the number of times we have expressed, in these pages, our frustration at the resulting MDL “parking lots.”

So we would love this decision even if it didn’t involve a bit of our professional history. The fact that it evokes decades-old memories of a fresh-faced associate only makes it sweeter. We are sure there is more to come in the Zostavax MDL, and we will keep you posted.

Bexis is going to have to give up saying that nothing good ever comes out of Missouri, because for the second time in just a few months we are reporting on a well-reasoned opinion from Missouri that comes to the right result for the right reasons.  In Fullerton v. Smith & Nephew, Inc., No. 1:18-cv-245, 2019 U.S. Dist. LEXIS 77350 (E.D. Mo. May 8, 2019), the district court dismissed all claims against a Tennessee-based medical device manufacturer on the basis that the Missouri-based court lacked personal jurisdiction.

There are a couple of interesting things about this order.  But first, what happened?  The plaintiff underwent a hip procedure in Arkansas using the defendant’s device, and the hardware allegedly failed, resulting in a second procedure to remove the device.  Id. at *2.  The defendant was a citizen of Delaware and Tennessee, but the plaintiff sued in Missouri.  Id. at *2-*3.  The plaintiff was a Missouri resident, so this is not a case of blatant litigation tourism that Missouri’s courts see all too often.

Regardless, because the defendant was not “at home” in Missouri and because there was no nexus between the tort and Missouri, the defendant moved to dismiss for lack of personal jurisdiction.  Id. at *3.

It was undisputed that the court did not have general jurisdiction over the defendant because Missouri was not the defendant’s home state.  Id. at *5.  The plaintiff therefore offered up two theories of specific jurisdiction:  First, the plaintiff asserted that the court had specific jurisdiction because the defendant sought to do business in Missouri by registering to do business with the Missouri Secretary of State.  Second, the plaintiff argued that although the device was implanted in Arkansas, the tort occurred in Missouri, where the device allegedly malfunctioned.  Id. at *5.

The district court rejected both arguments, and there are two points that we would emphasize.  First, although the plaintiff attempted to base specific jurisdiction on the defendant’s registration with the Missouri Secretary of State, he acknowledged that registering to do business and maintaining a registered agent alone do not create personal jurisdiction.  Id. at *8.  Corporate registration is often asserted as a basis for general jurisdiction, but the Missouri Supreme Court has already rejected that position.  The plaintiff in Fullerton therefore added that the defendant “has a long standing history of conducting business in Missouri and sells an ‘enormous amount’ of products in Missouri on a daily basis.”  Id. at *9.

Do those alleged facts sound familiar?  They should, because those were the facts in the U.S. Supreme Court’s landmark case on specific jurisdiction, BMS v. Superior Court, 137 S. Ct. 1773 (2017).  The defendant in BMS allegedly sold lots of product in California for patients other than the plaintiffs.  But according to the U.S. Supreme Court, even a defendant’s “extensive forum contacts” cannot support specific jurisdiction if they are unrelated to the plaintiff’s claims.  Id.  Any other approach would resemble a “loose and spurious form of general jurisdiction.”  Id.

The district court in Fullerton followed BMS and rejected specific personal jurisdiction based on the defendant’s allegedly “enormous amount” of unrelated business in Missouri:

Simply stating that a company marketed, promoted, and sold a product in Missouri does not establish specific jurisdiction.  Indeed, “[t]he inquiry into specific jurisdiction does not focus on Plaintiff’s contacts with the forum state, but Plaintiff’s injury must be connected to Defendant’s contacts with the forum state.”

Id. at *9-*10 (citing cases including Keeley v. Pfizer, Inc., No. 4:15CV00583 ERW, 2015 U.S. Dist. LEXIS 85282, 2015 WL 3999488, at *3 (E.D. Mo. July 1, 2015)).  That is where the plaintiff’s case for specific jurisdiction failed:  It was not relevant that the defendant sold products for other patients in Missouri.  The defendant had to have sold the plaintiff’s product in Missouri.

Bexis recently proposed a simple test to determine specific jurisdiction under BMS:  If the claimed forum contact could be asserted by any plaintiff, no matter where that plaintiff resides, was injured, etc., then it’s not the kind of contact that makes a claim “arise from” or “relate to” the forum state.  The plaintiff’s alleged forum contacts in Fullerton fail this test spectacularly.  Anyone, anywhere could assert that the defendant sells “an enormous amount” of product in Missouri.  That, however, is not relevant.  The plaintiff had to come up with “case-linked” Missouri contacts, and he could not.

That leads to the second interesting part of the Fullerton order.  This plaintiff argued also that the product was implanted in Arkansas, but that it allegedly malfunctioned in Missouri, which meant that a tort was committed in Missouri.  Nice try, but what does that have to do with the Defendant’s forum contacts?  “While Plaintiff maintains that he was a resident of Missouri when the tort occurred, the medical device at issue was manufactured in Tennessee, shipped to Arkansas, sold in Arkansas, and implanted in Arkansas.”  Id. at *10.  In other words, the complaint was devoid of any specific facts indicating that the plaintiff’s claim “arises out of and relates to the Defendant’s activities in the State of Missouri.”  Id. at *10-*11.

In the end, “[n]one of the facts alleged by Plaintiff connect [the defendant’s] conduct in Missouri to Plaintiff’s injury.”  Id. at *11.  The court therefore lacked personal jurisdiction.  As we said at the outset, the right result for the right reasons.

There are more bad fraudulent joinder decisions than good ones out there, and we typically do not like publicizing the other side’s wins. But occasionally an opinion is so weird that it merits a brief comment. Cardoza v. Med. Device Bus. Servs., 2019 U.S. Dist. LEXIS 77506 (W.D.Va. May 8, 2019), is a bit weird. The plaintiff was a Virginia resident who alleged that the liner of her hip implant fractured shortly after being implanted, requiring her to have emergency revision surgery. Because some of the fractured pieces could not be removed, she continues to have shards in her body. She sued in Virginia state court, naming five out-of-state defendants, all of whom have some relationship to the development, manufacture, or distribution of the hip implant and/or the liner, while also naming three Virginia defendants. What’s weird about any of that? It sounds like a run of the mill product liability case, doesn’t it?

Not completely. In addition to the product liability claims, the plaintiff also asserted three additional state-law claims: a “spoliation” claim; a claim for wrongful disclosure of medical information; and conversion. Those claims arose out of her allegation that, despite her surgeon’s pre-surgery assurances that he would give her the parts of the implant that were removed, those pieces were not provided to her, but were instead given to the manufacturing defendants, where they were “examined, inspected, and tested.” Although the parts have since been returned to her, she alleged that their condition and the lack of any information about the chain of custody makes it “virtually impossible for [her] to determine with reasonable certainty the root cause of her injuries and damages.”

The out of state defendants removed the case to federal court on the basis of diversity jurisdiction. The plaintiff moved to remand. Predictably, the plaintiff argued that the existence of the Virginia defendants destroyed diversity jurisdiction and required remand. Equally predictably, the out of state defendants countered that the non-diverse defendants were fraudulently joined because the plaintiff had no possibility of succeeding on the two counts in which they were named: wrongful disclosure of medical information, and conversion.

The plaintiff offered a threshold argument that remand was required because of technical violations of the removal statute, involving failures to attach copies of all process and pleadings in the case, as well as failure to give requisite notice. But no Fourth Circuit decision suggested that any such technical flaws invalidated removal, and the district court concluded that all that was afoot were de minimis violations that can be cured. We hope the defendants savored this victory, because it just gets worse after that.

The court concluded that, at least as to one claim against one of the non-diverse defendants, the conversion claim, the defendants “cannot show that there is no possibility of establishing the cause of action.” Still, the defendants did not go down without a fight. They relied on a consent form signed by the plaintiff prior to her surgery in which she consented in writing to the hospital doing what it pleased with the explanted parts. But the court held that it could not consider documents beyond the pleadings. The plaintiff claimed that she and her surgeon had a mutual intent to modify a term of the written agreement. Based on that, the court refused to say on the current record that defendants showed that the plaintiff had “no possibility” of succeeding on her claim.

The out of state defendants’ alternative argument was that, even if the non-diverse defendants were not fraudulently joined, the claims against them were improperly joined with the claims against the diverse defendants. This is a theory of “fraudulent misjoinder.” The court held that the plaintiff’s ability to prove her claims against the diverse defendants was “intertwined with her allegations regarding the conversion and spoliation of the extracted implants.” Thus, the court did not find that the claims against the non-diverse defendants were fraudulently misjoined. Lastly, as if to put a poisoned cherry on top of this rotten sundae, the court held that even if it had the discretion to sever, it would not do so here.

Anytime we start to write a post about a decision from New York, our heads start swimming in music lyrics.  Rose trees never grow in New York City…  Concrete jungle where dreams are made of…  Living just enough for the city…  Soon you will be on Sugar Hill in Harlem…  I don’t care if it’s Chinatown or on Riverside… Mom’s cookin chicken and collard greens…  Not only are there simply so many songs written about or inspired by New York, there are so many excellent songs written about or inspired by New York.  From Stevie Wonder to U2 to Paul Simon to the Beastie Boys and the list goes on . . . . Joel, Sinatra, Croce, Waits, Gershwin, Cohen . . .

As well as New York is known for its sound, our real goal today is to remind you it should also been known for its statute of limitations.  The opportunity to remind you is brought to us by the Second Circuit in Baker v. Stryker Corp., 2019 U.S. App. LEXIS 13869 (2nd Cir. May 9, 2019).  Plaintiff had a dental device implanted in August 2006 and in May 2016 filed suit alleging negligence, strict liability, and breach of warranty against the manufacturer.  Plaintiff’s sole argument was that he could not have discovered his injury until his first implant was removed in 2013.  Id. at *4.  But, that’s not the law in New York.  From the Battery to the top of Manhattan…  Actually from Tottenville to Massena since it’s the law of the state.

New York’s statute of limitations for products liability is three years and that starts to run from the date of injury.  Id. at *2-3.  That means the statute starts to run “when plaintiff first noticed symptoms, rather than when a physician first diagnosed those symptoms.”  Id. at *3.  So, it didn’t matter what the doctor diagnosed when he removed the implants.  The important facts are that plaintiff testified he started feeling pain within days of when the device was implanted in 2006.  He described the pain as “radically different from the pain he experienced” in earlier surgeries and that he also felt a choking sensation.  Id. at *3-4.  Therefore, his personal injury claims accrued in August 2006 and were time-barred.  New York where hustle’s the name of the game.

In New York, the discovery rule that plaintiff tried to rely on only applies to latent exposure cases.  See C.P.L.R. §214-c.  In other words, it was meant for toxic torts.  Baker at *5.  But even if it did apply, “discovery” is defined as “discovery of the physical condition and not . . . the more complex concept of discovery of both the condition and the nonorganic etiology of that condition.”  Id.

Plaintiff’s breach of warranty claim was similarly time-barred because that four-year statute began to run at the time of sale or entry into the stream of commerce.  Id.  So, the latest date of accrual for that claim was at the time of implant which was after the manufacturer sold the device to the hospital.  Id.   The dismissal was affirmed.  It comes down to reality…

And while it’s still a bit cold and dreary in New York right now, we’ll try to conjure up some warm thoughts by ending with — It’s not far, not hard to reach.  We can hitch a ride to Rockaway Beach…

We’ve explained at length why Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), is an anachronism with respect to preemption, given the complete overhaul that Congress gave to §510(k).  Still, strange things happen when preemption meets product liability, and there seems to be a conspiracy of silence among judges with respect to current FDA §510(k) practices and Lohr’s archaic 1982 “grandfathering” process.

But not always.

Thus, today we are discussing Kelsey v Alcon Laboratories, Inc., 2019 WL 1884225 (Utah Dist. April 22, 2019).  The product in Kelsey was contact lens disinfectant, which the plaintiff (predictably) claimed was ineffective in preventing a serious eye infection.  Id. at *1.  We can essentially predict that sort of thing.  Plaintiff at risk of condition X takes something designed to prevent it, and presto, the plaintiff demands that the manufacturer effectively becomes an insurer against whatever that risk might be.

But a funny thing happened in Kelsey on plaintiff’s way to collecting on her ex post facto free insurance claim.


This product was not grandfathered Lohr-style.  Rather it was subject to numerous FDA-imposed “special controls” – specific to this type product.  In particular, FDA had issued “guidance” concerning the applicable FDCA-based requirements:

[T]he FDA issued the Premarket Notification (510(k)) Guidance Document for Contact Lens Care Products (Guidance).  The Guidance “sets forth the general information and special controls FDA believes are needed to assure the safety and effectiveness of contact lens care products. . . .”

Kelsey, 2019 WL 1884225, at *6.  “The Guidance ‘sets forth the special controls which have been determined at this time . . . to be necessary to provide reasonable assurance of the safety and effectiveness of class II contact lens care products.’”  Id. at *7.  We won’t recite the details, but the guidance covered the product’s design, good manufacturing practices, and labeling.  Id. at *7-8.  However, with respect to labeling, the guidance was ambiguous in certain respects:

There is nothing in the Guidance or the Appendix that defines package insert, specifically requires it to be a separate leaflet or pamphlet, or prohibits it from being printed on the inside of the carton.

Id. at *8.

Reviewing both Lohr and Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), Kelsey concluded that “there is no automatic preemption” of product liability claims against §510(k) devices.  2019 WL 1884225, at *9.  Rather:

“[S]tate and local requirements are pre-empted only when the [FDA] has established specific counterpart regulations or there are other specific requirements applicable to a particular device under the act, thereby making any existing divergent State or local requirements applicable to the device, different from, or in addition to, the specific Food and Drug Administration requirements.”

Id. (quoting 21 C.F.R. §808.1(d)).  “Special controls” imposed under the current §510(k) process can qualify as preemptive.

Special control documents may provide specific requirements that support a conclusion of preemption of state law claims if they show the federal government has weighed the competing interests relevant to the particular requirement in question, reached an unambiguous conclusion about how those competing considerations should be resolved in a particular case or set of cases, and implemented that conclusion via a specific mandate on manufacturers or producers.

Kelsey, 2019 WL 1884225, at *9 (citations and quotation marks omitted).

In the case of contact lens disinfectant, between a device-specific regulation, 21 U.S.C. §800.10(a), and the aforementioned guidance, there were plenty of preemptive requirements applicable to this device to support preemption.  FDA regulation “forbids a manufacturer from making changes in the design specifications, manufacturing processes, labeling, or any other attribute that could significantly affect the safety or effectiveness of the solution without FDA review, comment, and permission.”  Id. at *10.

Plaintiff tried to escape preemption by arguing that the FDA guidance wasn’t mandatory and only provided “recommendations.”  Id. at *11.  Not a bad argument.  We’ve pointed out the non-binding nature of FDA guidance on numerous occasions.  But it wasn’t the guidance itself, it was the FDA requirements as to which the guidance provided compliance tips that proved preemptive in Kelsey.  “The court disagrees as they relate to the design and manufacture of multi-purpose contact lens solution.  While the Guidance permits some flexibility in how applicants go about demonstrating their solution meets the safety and efficacy requirements, the solution must meet those requirements to be labeled a multi-purpose solution.”  Id.

Who says so?

The FDA in allowing the product onto the market, that’s who:

[A]ccording to the 510(k) Summary, the FDA determined “[b]ased on the results of the comprehensive preclinical evaluations, [the product] is safe for the consumer under the recommended use conditions, as well as under conditions of reasonably foreseeable misuse.”

Id.  Kelsey based its conclusions on a pair of Ninth Circuit decisions, since neither Utah, nor the much smaller Tenth Circuit, had on-point precedent.  Id. at *11-12 (citing Degelmann v. Advanced Medical Optics, Inc., 659 F.3d 835, 838-39 (9th Cir. 2011), vacated due to settlement, 699 F.3d 1103 (9th Cir. 2012), and Papike v. Tambrands Inc., 107 F.3d 737, 740 (9th Cir. 1997)).  “[T]he Ninth Circuit determined the sterility labeling requirement was a device specific regulation because it specifically required a contact lens solution to meet standalone performance criteria to be labeled ‘disinfecting solution.’”  Id. at *11.

As to warnings, Kelsey held that, while the §510(k) requirements could be preemptive, the defendant couldn’t yet muster the record, given the pleadings-restricted nature of a Rule 12 motion to dismiss.  Id.  Plaintiff had a rather odd claim, that turned on the location – rather than the language – of  the relevant warnings:

Plaintiff does not allege that [the product’s] labeling should include different or additional warnings or instructions.  Rather, Plaintiff alleges the warnings and instructions should be included on a “package insert,” which she defines as a separate leaflet or pamphlet inserted in the carton.

Id.  Defendant had instead printed the warning in question on the inside of the package containing the product.  Id. at *3.  The defendant had a bunch of exhibits that (according to it) showed that the inside-the-box warnings satisfied the FDA’s requirements, but the court refused to take judicial notice of them.  Id. at *12.

Further, the guidance wasn’t device specific as to warnings.  “[T]he labeling section of the guideline does not mandate any particular language or warning.  Instead, it provides suggestions’ for language to assist in preparing labeling.”  Id. at *13.  However, some labeling claims might be ultimately be preempted.  Warning claims “would be preempted to the extent . . . based on the label’s inclusion of the words ‘sterile’ or ‘disinfecting,’” but not as to the “claim related to the location of the warnings and instructions.”  Id.  Presumably, plaintiff had figured that out, which is why the unusual locational claim was made in the first place.

Thus, preemption barred the design claims in Kelsey even though the product was §510(k) cleared.  Preemption also could bar some of warning claims, but not the plaintiff’s locational claim.  Preemption also barred claims covered by Good Manufacturing Practices, but not against manufacturing defect claims based on allegations of actual contamination.  Id. at *10-11 & n.73.

While Kelsey involved a product-specific regulation and FDA guidance document, the court also cited to the FDA’s “safety and effectiveness” conclusions made during the clearance process.  That’s progress.  Finally, as a procedural note, Kelsey was not an MDL.  That also means that the built-in institutional biases that make preemption arguments an uphill battle in the MDL context didn’t exist.  We think that’s an apt practice pointer.  There is a reason that we entitled our post that first laid these arguments out, “In Case of Good Judge, Break Glass – Implied Impossibility Preemption in Cases Involving §510(k) Cleared Medical Devices.”


Late last year we published the post “Twiqbal for Defendants? Not If We Can Help It.” on the issue of whether the “plausibility” standard of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S 662 (2009), applied to “affirmative defenses (which we prefer to just call “defenses) pleaded under Fed. R. Civ. P. 8(c).  Basically, our two responses to the proposition that Rule 8(c) defenses could be TwIqballed were “no” and “hell, no.”

In addition to amassing District Court precedent from every circuit, we relied on several opinions from federal courts of appeals, citing cases from the Third, Sixth, Seventh, and Ninth Circuits.

Well, the circuits are no longer unanimous.  To make sure nobody on our side is misled, we feel we ought to mention the new decision, GEOMC Co. v. Calmare Therapeutics Inc., 918 F.3d 92, 94 (2d Cir. 2019), which largely, but not entirely, holds that the absolute anti-TwIqbal position we took in that post is all wet.  GEOMC is not by any means a drug/device, or even a personal injury, decision (it’s a dispute over a commercial contract), so we didn’t find out about it until recently.

We don’t care about the facts, or the law, or even the procedure, except for the TwIqbal ruling in GEOMC.  So getting right to that, the question before the Second Circuit was “whether Twombly applies to the pleading of affirmative defenses.”  918 F.3d at 97.  GEOMC answered that question in the affirmative – at least “in context.”  Specifically:

We conclude that the plausibility standard of Twombly applies to determining the sufficiency of all pleadings, including the pleading of an affirmative defense, but with recognition that, as the Supreme Court explained in Iqbal, applying the plausibility standard to any pleading is a “context-specific” task. . . .  The key aspect of the context relevant to the standard for pleading an affirmative defense is that an affirmative defense, rather than a complaint, is at issue.

Id. at 98 (citations and quotation marks omitted).

The contextual issue recognized in GEOMC was the same one that we pointed out in our prior post had led most courts to opt for a more relaxed pleading standard for Rule 8(c) – what we described as “unfairness”:

the unfairness of holding the defendant to the same pleading standard as the plaintiff, when the defendant has only a limited time to respond after service of the complaint while plaintiff has until the expiration of the statute of limitations.

The Second Circuit in GEOMC viewed this concern as “context,” holding:

This is relevant to the degree of rigor appropriate for testing the pleading of an affirmative defense.  The pleader of a complaint has the entire time of the relevant statute of limitations to gather facts necessary to satisfy the plausibility standard.  By contrast, the pleader of an affirmative defense has only the 21-day interval to respond to an original complaint. . . .  That aspect of the context matters.

Id. at 98.  So difficulties in marshalling facts to support Rule 8(c) defenses are “a circumstance warranting a relaxed application of the plausibility standard.”  Id. at 98.

A second contextual matter also comes into play – whether the “facts” are accessible to the pleader within the limited time frame available:

In addition, the relevant context will be shaped by the nature of the affirmative defense.  For example, the facts needed to plead a statute-of-limitations defense will usually be readily available; the facts needed to plead an ultra vires defense, for example, may not be readily known to the defendant.


GEOMC affirmed striking two defenses:  contributory fault and failure to join a “necessary party.”  As to the first, it “lacked any indication of what conduct by [plaintiff] or others might have been a defense to the breach of contract claim.”  Id. at 99.  As to the second, it “lacked any indication of which party needed to be joined or why.”  Id.  In both instances, the pleading defendant “needed to support these defenses with some factual allegations to make them plausible.”  Id.  There was, however, something else in play − timing.  “[B]oth affirmative defenses were presented at a late stage of the litigation” and, what’s worse “sought to challenge claims made nearly a year earlier in the first amended complaint.”  Id.  Basically, the Second Circuit detected sharp practice, using an answer to an amended complaint to raise additional defenses to the original claim, as opposed to anything in the amendment.

So, what’s the upshot of GEOMC?  In practice we’re not sure there is much.  It seems like the difference is mostly in emphasis.  Our post (and most courts and commentators) took the position “no TwIqbal because of X.”  The Second Circuit has taken the position “yes, except X warrants “relaxing” the usual TwIqbal standard.”  While that doesn’t sound like much, we do have to admit, however, that the Second Circuit does apply TwIqbal, in some fashion, to Rule 8(c) defenses.  So particularly in the Second Circuit defendants would be well-advised not to go overboard with boilerplate defenses.

We’re writing a quick-hit post today on a topic that comes up often in medical device litigation, but rarely results in a court order—what happens when the plaintiffs want an “exemplar” medical device?  How do they get one and who pays for it?

We’re not talking here about the medical device that was actually used to treat the plaintiff.  That one has already been purchased and paid for, and it may still be implanted inside someone’s body.  No, we are referring here to brand new devices that have never been used and that the plaintiffs can use for expert consultation, trial exhibits, or anything else that does not involve actually using the exemplar in a human.

The plaintiffs in Ramkelawan v. Globus Medical Inc., No. 5:18-cv-100, 2019 U.S. Dist. LEXIS 67516 (M.D. Fla. Apr. 22, 2019), wanted multiple exemplars, and they wanted them “at cost.”  Id. at *9-*13.  The district court ruled, however, that there is simply no authority to compel a defendant to sell its products to opposing attorneys at a preferred price.  Id. at *12-*13.  If the plaintiffs wanted exemplars, they would have to buy them—and pay retail.

The dispute centered around Rule 34, which allows requests “to produce and permit the requesting party . . . to inspect, copy, test, or sample . . . any designated tangible things.”  Fed. R. Civ. Proc. 34(a)(1).  The rub is that Rule 34 does not address the cost that should be charged.

In Ramkelawan, the defendant device manufacturer did all that it seems a defendant ought to be required to do, plus more.  The plaintiffs’ experts had already inspected, measured, photographed and CT scanned certain parts of the subject devices, and they had tested the surface of the subject devices with Fourier Transform Infrared spectrometry.  Id. at *10-*11.  The defendants offered exemplars for additional inspection on conditions that were perfectly reasonable:  The plaintiffs had to pay for them, mark them “not for human use,” pay for transportation, promptly produce any testing reports, and return the exemplars to defendants at the end of the litigation or destroy them.  Id. at *11.  To the extent the plaintiffs wanted to inspect an “assembly block”—which we assume is used in assembling the devices—the manufacturer agreed to make one available for inspection at its experts’ facility.  Id. at *12.

All that was not good enough for the plaintiffs, who wanted a discount.  The district court nonetheless denied their motion to compel.  Cases involving ordinary products like “ladders and shopping carts” were inapposite to this case, which involved “highly specialized medical devices.”  Id. at *12.  Further, in the case that the plaintiffs cited, the requesting parties had agreed to pay retail prices.  Id. at *12-*13.  In the end,

[w]hile the undersigned acknowledges (as Defendants apparently do) that Rule 34 contemplates that Defendants make the subject device or exemplars available for inspection, there is simply no basis or authority for the Court to require Defendants to provide the exemplars for purchase at Plaintiffs’ preferred price, or “at cost.”

Id. at *13.  Bank this one away for future reference.  The next time plaintiffs’ attorneys wants an exemplar, offer to sell them one at the retail price or make one available for visual inspection.  If push comes to shove, Ramkelawan will be helpful.

In some states (we’re looking at you, California) it is frightfully hard to win on fraudulent concealment removal where the plaintiff has joined an in-state distributor of a drug or medical device. In other states, defendants have more of a shot. Today’s case, Harris v. Zimmer Holdings, Inc., 2019 U.S. Dist. LEXIS 71025 (S.D.N.Y. April 26, 2019), is one of the latter. The plaintiff was an Ohio citizen who claimed personal injury from a hip implant. He filed suit in Ohio state court alleging Ohio state causes of action against diverse manufacturer defendants and against Ohio (therefore non-diverse) distributor defendants. The presence of the latter supplied the ostensible reason why the action could not be removed to federal court. Still, the defendants removed, arguing that the Ohio defendants had been fraudulently joined and that, therefore, federal diversity jurisdiction existed. The fraudulent joinder argument rested on the notion that the claims against the Ohio defendants were implausible. The removal petition was accompanied by sworn affidavits from the Ohio distributor defendants denying that they played any role in the manufacturing, labeling, or packaging of the hip implant or had knowledge of its claimed defects.

The plaintiff initially filed a motion to remand in the Northern District of Ohio. Subsequently, the action was transferred to the Southern District of New York pursuant to an order from the Judicial Panel on Multidistrict Litigation. The MDL transferee court must apply the law of the circuit in which it is located. That means that Second Circuit law controlled. So far so good. But when a defendant’s fraudulent joinder claim is premised on a failure to state a plausible cause of action – as was the case in Harris – courts apply the relevant state pleading rules. Uh oh. Unlike the heightened federal pleading standards set forth in Twombly, Ohio applies “liberal notice pleading requirements” which simply require the plaintiff to provide fair notice of the claims and the grounds upon which they rest. Double uh oh.

But it turns out that there was no reason for those uh oh’s. What were the plaintiff’s claims against the Ohio distributor defendants? Broadly stated, the plaintiff alleged that the Ohio distributor defendants failed to convey adequate warnings to the plaintiff’s doctor, and that the distributor defendants were in the business of marketing, promoting, selling and/or distributing the unreasonably dangerous medical devices. What’s more, the distributor defendants also “negligently distributed, marketed, advertised and/or promoted the dangerous medical devices.” We’re not done yet. The plaintiff also said that the distributor defendants “made negligent misrepresentations regarding the safety and efficacy of the dangerous medical devices.” One more thing: the distributor defendants “negligently failed to provide sufficient information and instructions to Plaintiffs and/or Plaintiff’s prescribing physicians.” A bit repetitive, right? These allegations cannot reside in thin air. They must be stated in the form of legal causes of action. Here, the plaintiff joined the Ohio defendants in three causes of action: (1) defective design, in violation of the Ohio Products Liability Act (“OPLA”), (2) failure to warn, in violation of OPLA, and (3) violation of the Ohio Consumer Sales Practice Act (“OCSPA”).

At this point, the plaintiff in Harris had a couple of problems. Problem 1 is that the design defect and failure to warn claims under the OPLA applies only to manufacturers unless a statutorily defined exception applies – which was not the case here. Problem 2 for the plaintiff is that the OCSPA does not apply to claims for personal injury or death, although a plaintiff may recover damages arising from bodily injury so long as the injury itself is not the basis of the OSCPA claim. Here, the plaintiff’s OSCPA claim was clearly a claim for bodily injury. The plaintiff “cannot prove that the Device had concealed ‘defects’ and ‘serious risks’ without showing the Device caused bodily injury. Here, the predominate harm which is the gravamen of this case, is the alleged physical harm associated with the Device.” The Second Circuit concluded: “Accordingly, even under Ohio’s lenient pleadings standard, Defendants have met their high burden of showing fraudulent joinder as to the Ohio Defendants.”

The plaintiff’s remand motion was denied.

Today’s case in a nutshell is the dismissal on forum non conveniens grounds of a claim brought in the United States by a woman from a Spain.  We didn’t need to read beyond that blurb before we started hearing . . .

Farewell and adieu to you, fair Spanish ladies,

Farewell and adieu to you, ladies of Spain;

For we’ve received orders

For to sail to back to Boston

And so never more shall we see you again.

Just in case you don’t immediately hear that tune in Robert Shaw’s raspy tenor, here’s a link to enjoy.  Quint Americanized his version by referencing Boston, but it’s actually a Napoleonic era English sea ballad.  You can find more of the lyrics quoted in Moby Dick and the song pops up there and again in movies and television (often in homage or reference to Jaws), including in 2003’s Master & Commander, where we can only be thankful that it wasn’t sung by Russell Crowe.

Courage v. DePuy Orthopaedics, Inc., 2019 WL 1923311 (N.D. Ohio Apr. 30, 2019) is one of twelve essentially identical decisions sending Spanish litigation tourists back to Spain and in the process sets out a nice forum non conveniens analysis.  Plaintiff is a resident of Spain.  She underwent two hip replacement surgeries in Spain.  She underwent revision hip surgery in Spain.  All of her medical care related to her hip implants took place in Spain.  The device used in her hip replacements was designed and manufactured by DePuy International Limited, a United Kingdom company.  Id. at *2.  But, when plaintiff brought her failure to warn lawsuit, she filed it in the United States.  Id.

On a forum non conveniens challenge, the court undertakes a three step analysis: (1) how much deference to afford plaintiff’s choice of forum; (2) whether an adequate alternative forum exists; and (3) whether plaintiff’s chosen forum is unnecessarily burdensome.  Id. at *3.  On the last two issues, defendant bears the burden of proof.

Plaintiff’s choice is afforded less deference when plaintiff is resident of a foreign country.  In this instance, plaintiff was unable to demonstrate that she chose the U.S. for a legitimate reason, such as obtaining jurisdiction over defendant, rather than just a “tactical advantage.”  Id. We know American courts are attractive, but that’s not enough.

In addition, the Spanish legal system was available to plaintiff.  Spain recognizes numerous causes of action for personal injuries based in negligence as well as product liability law.  Id. at *4.  It does not matter that the alternative forum may not provide the same “range of remedies” as the original forum, it simply must provide “some potential avenue for redress.”  Id. at *3.  Spain does.  The second part of the alternative forum analysis is whether the defendant is amenable to process in that forum.  Here, DePuy International agreed to accept service of process of Spain and agreed to waive statute of limitations/repose under Spanish law.  Id. at *4.

Finally, the court has to assess the burden of proceeding in the chosen forum based on a balance of private and public interest factors.  Starting with the private interest factors – “all evidence related to causation and damages is located in Spain.”  Id.  The physicians are in Spain.  The documents are in Spain.  And, unlike in many foreign plaintiff cases, the product was also not designed or manufactured in the United States.  The only thing in the United States is the DePuy Hip Implant MDL and typically higher damage awards. But given these facts,

[a] trial in the United States will unfairly prejudice the Defendants by imposing barriers on their ability to secure crucial medical evidence, and prevent them from presenting this evidence through the live testimony of the medical professionals involved in Plaintiff’s care and treatment. Unlike Spanish courts, the United States lacks subpoena power to compel the production of Spanish witnesses for trial in this country.

Id. at *5.  The court found the “forced reliance on deposition testimony and medical records that must be translated” was too “significant a procedural hindrance” to allow the case to proceed in the U.S.  Id.

As to the public interest, Spain has the much greater interest in adjudicating the claims of alleged injury to one of its residents and in enforcing its regulatory and safety requirements for products sold within its borders.  Id.  Further, under Ohio’s choice of law rules, Spanish law would most likely apply.  The U.S. court “would have to engage in the cumbersome task of analyzing Spanish law and applying to multiple principles of U.S. law.”  Id. at *6.  Therefore, the “tenuous” connection between plaintiff’s claim and the U.S. combined with the availability of redress in Spain, warranted dismissal.  Farewell and adieu.

And, if that sea shanty wasn’t to your liking, how about a Roy Scheider, Robert Shaw, Richard Dreyfuss trio . . . Show me the way to go home . . .





Of all the one-off posts that we’ve done, our post from 2011, “Depositions – When Can You Talk To Your Own Witness?,” has probably garnered the most ongoing use by litigators generally.  Both inside or outside of our firms, we get questions or comments about it probably about once every other month.  That’s a lot, considering how many of our posts seem to vanish without a trace.

Because that post has generated so much interest, we thought we’d update it.  We’ll start with repeating our conclusions from back then:

First, conferring with the deponent (on anything other than privilege) while a question is pending is asking for trouble.  The weight of authority puts that on the wrong side of the line.

Second, taking a break during questioning for the sole purpose of conferring with the deponent has also drawn quite a bit of judicial fire.  Expect trouble if doing this, although sanctions may well be avoided if the witness testifies that no coaching occurred.

Third, conferring over lunch or other breaks during the deposition taken for unrelated reasons is more likely to be viewed as OK.  Again, if you’re willing to have the witness testify that no coaching occurred, so much the better.

Fourth, just as the weight of authority is against conferring with questions pending, once we get to overnight breaks, the weight has shifted decisively to such conferences being allowable.  There’s some contrary precedent, but not much.

Fifth, once we get into the realm of multi-day adjournments, except possibly in South Carolina (and Delaware, if less than five days), conferences between counsel and the deponent are all right.

The obvious way to start the update was to look for post February, 2011 citations to the leading (if not necessarily most followed) decision on in-deposition consultations, Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).  We also point out (as we did in 2011) that there is no necessarily “pro-plaintiff” or “pro-defense” position on this issue, so we present both sides of the law equally, according the importance we perceive in the cases.

Since our earlier post, one more state supreme court, Nevada’s, has weighed in.  Coyote Springs Investments, LLC v. Eighth Judicial Dist. Court, 347 P.3d 267, 270 (Nev. 2015), was oddly postured.  No sanctions or additional discovery was sought after an attorney-requested in-deposition break between topics (but with no question pending) was quickly followed by the witness changing his testimony.  Id. at 269.  Instead, opposing counsel waited until trial (a bench trial) to inquire into what were claimed to be privileged communications.  During the trial, the lower court found the privilege waived.  Id. at 270.  The conferring party sought an extraordinary writ.  The Nevada Supreme Court found the absolute Hall rule was “unnecessarily restrictive.”  Id. at 273.  Rather, Coyote Springs drew the line between conferring during unrequested deposition breaks (OK) and requesting a break to confer (mostly not OK):

[W]e hold that attorneys may confer with witnesses during an unrequested recess or break in a discovery deposition.  Furthermore, we hold that attorneys may not request a break to confer with witnesses in a discovery deposition unless the purpose of the break is to determine whether to assert a privilege.  We additionally hold that once the deposition proceedings resume after a private conference that is requested to determine whether to assert a privilege, the attorney must place the following on the record:  (1) the fact that a conference took place; (2) the subject of the conference; and (3) the result of the conference, specifically, the outcome of the decision whether to assert a privilege.  We stress that counsel must make a record of the confidential communications promptly after the deposition resumes in order to preserve the attorney-client privilege.

Id. (citations omitted).  Because the testimony at issue involved a requested break, and did not concern a privilege issue, use of the disputed testimony about what transpired during the conference was not an abuse of judicial discretion.  Id.

Chesbrough v. Life Care Centers, Inc., 2014 WL 861200 (Mass. Super. Feb. 14, 2014), is a state trial court opinion of exceptionally high quality.  “[T]here was no artfully timed break-taking with either questions pending or clear lines of inquiry interrupted” during the Chesbrough deposition, but one “conference between [the witness] and his counsel . . ., which lasted just two minutes, [and] occurred during an unanticipated break requested by a different lawyer.”  Id. at *2.  As one might guess from that description, no sanctionable conduct was found.  The court refused to follow Hall, which was advanced for the rather extreme proposition that any conference during a deposition “amounted to impermissible coaching per se, and without more entitle[d the opponent] to pierce the attorney-client privilege that would otherwise attach to such communication.”  Id.  Instead, construing the applicable Massachusetts rule (Rule 30(c)), the court held the in-deposition conference proper:

Defendant’s counsel did nothing to violate either the provisions or purposes of Rule 30(c). . . .  She did not interrupt the examination of her client, or do anything to interfere with the flow of opposing counsel’s questioning.  The break that occurred here was requested by a different attorney, and by all accounts had nothing to do with advice-seeking on the part of the deponent.  There was no question pending at the time this break commenced, another circumstance suggestive of coaching not present in the case at bar.

Id. at *3.  Chesbrough rejected an “expansive construction” of the rule, based on Hall, that would have “equate[d] all forms of lawyer-witness communication during the course of a deposition (and appurtenant breaks) with impermissible coaching.  Id.  While Hall might be “ground zero” on this issue, Chesbrough found some of its holdings radioactive:

[While] Hall has gained a modest following in the courts since its publication in 1993 . . ., the greater weight and better reasoned authority that has evolved in the area of lawyer-client conferences during depositions has come to reject Hall as an untenable and impractical interference with the attorney-client privilege and right to counsel. In its zeal to root out witness coaching from civil deposition practice, Hall prescribes a remedy now widely regarded as more destructive than the ill it seeks to cure. . . . [T]he rules of Hall sweep too broadly to be adopted in this jurisdiction.

2014 WL 861200, at *5 (citations omitted).  Instead, Chesbrough imposed a more flexible set of rules for dealing with situations suggesting improper in-deposition witness coaching:

[I]f a deposing lawyer comes to believe in good faith that an opposing counsel has improperly coached a witness during the course of a deposition . . . then the lawyer . . . may in this circumstance inquire of the witness both as to the reason for the break and/or the change in testimony.  If the witness invokes the attorney-client privilege in response to such inquiry, deposing counsel may properly insist on the record that the deponent acknowledge the fact that a conference with counsel was held, the subject matter (but not substance) of the conference to which privilege is claimed, and the time, place and participants in the conference. . . .  The Court believes that the availability of such recourse will in most circumstances deter bad behavior by lawyers defending client depositions.

Id. at *8 (emphasis original).  The most commonly sanctioned conduct – conferring “while a deposing lawyer’s question is pending” and “initiat[ing] a break or recess for the purpose of conferring about the substance of the witness’s testimony . . . in the middle of a deposing lawyer’s line of questioning” – were prohibited, id. at *9, but all other in-deposition breaks were allowed, subject to the anti-coaching procedure outlined above.  Id.

Other cases involving the propriety of in-deposition conferences subsequent to our 2011 post are as follows:

Finding in-deposition conference improper

Demonstrably, counsel conducting depositions in federal courts in Pennsylvania, where Hall originated, should be extra careful when they elect to have conferences with deponents during the course of depositions.  See Peronis v. United States, 2017 WL 696132, at *2 (W.D. Pa. Feb. 17, 2017) (order prospectively applying Hall to deposition conduct); Dalmatia Import Group., Inc. v. Foodmatch, Inc., 2016 WL 6135574, at *6 (E.D. Pa. Oct. 21, 2016) (prospectively ordering that “Counsel will not communicate with deponents during breaks regarding the substance of their deposition testimony”); Vnuk v. Berwick Hospital Co., 2016 WL 907714, at *4 (M.D. Pa. March 2, 2016) (“speaking with [the client] about the subject matter of the deposition during lunch and other breaks, is wholly inappropriate, unprofessional, and − if it occurs again – sanctionable”; counsel also passed notes and whispered to client during questioning).  But strict application of in-deposition conferences is by no means limited to Pennsylvania.  See New Age Imports, Inc. v. VD Importers, Inc., 2019 WL 1427468, at *3 (C.D. Cal. Feb. 21, 2019) (motion to compel second deposition of witness due to in-deposition conference was “substantially justified” as to support an award of costs); Horowitz v. Chen, 2018 WL 4560697, at *3-5 (C.D. Cal. Sept. 20, 2018) (attorney and client “repeatedly left the room together while a question was pending”; costs and redeposition ordered); Bracey v. Delta Technical College, 2016 WL 918939, at *1-2 (N.D. Miss. March 9, 2016) (in-deposition conference resulted monetary sanction); Plaquemines Holdings, LLC v. CHS, Inc., 2013 WL 1526894, at *6 (E.D. La. April 11, 2013) (“counsel . . . took several ‘breaks’ during the deposition [and] . . . during one of these ‘breaks’ he spoke briefly with his client”; redeposition ordered because “the conduct is impermissible under Rule 30”); South Louisiana Ethanol, L.L.C. v. Fireman’s Fund Insurance Co., 2013 WL 1196604, at *7 (E.D. La. March 22, 2013) (“unilaterally taking a ‘break’ in the deposition, and speaking to [the deponent] outside the deposition” was “clearly inappropriate”).  And a special note about Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 2011 WL 4526141, at *8 (S.D.N.Y. Sept. 21, 2011), adopted, 2011 WL 4526137 (S.D.N.Y. Sept. 29, 2011), and NXIVM Corp. v. Cote, 2011 WL 3648852, at *2 (N.D.N.Y. Aug. 18, 2011).  They also followed a strict Hall standard, but cases below discuss, the local New York federal court rules have subsequently been relaxed, and as a result of the local rules change, these two are of questionable validity.

In the middle

Pia v. Supernova Media, Inc., 2011 WL 6069271, at *3 (D. Utah Dec. 6, 2011) (deponent “may assert the attorney-client privilege concerning the conversations between [him] and his counsel that occurred while on long breaks while no question was pending, but must answer questions about conversations that occurred during breaks while a question was pending”); Pedraza v New York City Transit Authority, 2016 WL 270825, at *11-12 (N.Y. Sup. Jan. 20, 2016) (while 22 NYCRR 221.3 “prohibits the very type of interruption that plaintiff’s counsel sought,” and is not limited to breaks with a question pending, sanctions denied because no “tactical advantage” was sought).

Not finding in-deposition conference improper

Unlike the Hall-based decisions, the more liberal cases are not concentrated in certain jurisdictions, but seem to come from all over.  Pain Center, LLC v. Origin Healthcare Solutions LLC, 2015 WL 4548528, at *5 (S.D. Ind. July 28, 2015) (“conferring with a deponent during a recess . . . does not interfere with the fact-finding purpose of a deposition); Cannon v. Time Warner NY Cable LLC, 2015 WL 2194620, at *1 (D. Colo. May 7, 2015) (“there is no bar on attorney consultation with a client during the client’s deposition, as a general matter − so long as no question is pending”); Gavrity v. City of New York, 2014 WL 4678027, at *2 (E.D.N.Y. Sept. 19, 2014) (“The rules of this Court do not prohibit discussions between counsel and client during a deposition other than when a question is pending”) (citing E.D.N.Y. Loc. Civ. R. 30.4); Few v., 2014 WL 3507366, at *2 (S.D.N.Y. July 14, 2014) (rejecting Hall rule under New York law; “The current rule . . . narrows the restriction on counsel to conferencing during the pendency of a question, a change that obviously represents a deliberate decision to alter the scope of the prohibition”); Murray v. Nationwide Better Health, 2012 WL 3683397, at *4-5 (C.D. Ill. Aug. 24, 2012) (a “blanket prohibition on defense counsel having a private conference with [his client] during the deposition is overly broad”; “defense counsel may have a private conference with [a client] during a recess that counsel did not request (and so long as a question is not pending)” and during other unrequested breaks); Ginardi v. Frontier Gas Services, LLC, 2012 WL 13028126, at *2 (E.D. Ark. Jan. 6, 2012) (in-deposition break to locate documents with no question pending not sanctionable; “Hall fails to recognize the importance of the attorney-client privilege”); Perrymond v. Lockheed Martin Corp., 2011 WL 13269787, at *3 (N.D. Ga. Feb. 18, 2011) (sanctions denied; “Plaintiff has not explained that [counsel’s] bathroom break comment thwarted her from pursuing a line of questions or otherwise interfered with her examination”).

Almost all of on-point precedent, whether inclined or disinclined to prohibit all in-deposition conferences, involved communication between attorneys and their clients.  But what about in-deposition conferences between an attorney and a paid expert witness?  Different rules apply, held Callahan v. Toys “R” Us-Delaware Inc., 2016 WL 9686055 (D. Md. July 15, 2016).  “[C]ommunications between attorneys and experts . . . are protected under an extension of the work-product doctrine.”  Id. at *3.  “Counsel’s choice to confer with [his expert] during the deposition break does not evince a conscious disregard of the advantage of keeping the defense strategy private,” so work product protection was not waived.  Id.  However:

Counsel’s continued insistence that the specific communications here are protected by the work-product doctrine essentially concedes their strategic nature, evidencing a danger for the precise type of witness coaching from which attorneys should refrain while witnesses are under oath.  The Court must thus conclude that the communications were improper under Rule 30.

Id. at *3.  Thus, Callahan imposed a different sanction – striking all of the expert’s deposition testimony that followed the in-deposition conference at issue.  Id. at *4.  While funny business during expert depositions is less likely to waive a privilege, Callahan demonstrates the ingenuity of courts in addressing in-deposition conferences that are thought improper.

Looking at all this, we think the continued development of the law only reinforces our 2011 conclusions.  Taking a break to confer with a client while an unanswered question is pending is asking for trouble.  That will almost always draw a sanction.  Requesting a break without a question pending is also dangerous, although a break at a logical point where the previous topic of questioning is completed will be looked upon more kindly.  Except in Pennsylvania, attorney-deponent consultations, at naturally occurring breaks in the deposition, have been pretty much OK.  Conferences between attorneys and deponents during overnight (or longer) breaks, are by now almost universally allowed, save an occasional, possibly anachronistically drafted court rule.

*          *          *          *

Finally, under the heading “only in California,” one party actually tried to sue the other over alleged in-deposition coaching consisting of, inter alia, conferring with the witness during questioning.  See Goodwin v. Pagano, 2015 WL 9486589, at *11 (Cal. App. Dec. 29, 2015) (affirming dismissal; “local court guideline” does not create a private cause of action).