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We like preemption and we dislike expensive discovery. In Gale v. Mentor Worldwide, LLC, 2019 WL 2567790 (D. Kansas June 21, 2019), the court felt the same way we do, and did something about it.

The plaintiff in Gale sued for injuries allegedly sustained as a result of silicone breast implants. The complaint contained the usual claims for failure to warn, manufacturing defect, and design defect. Breast implants went through the rigorous Pre-Market Approval process, which permitted the defendant to move to dismiss on grounds of preemption via the Medical Device Amendments. The defendant also moved to stay discovery pending resolution of the motion to dismiss.

Kansas is in the Tenth Circuit, and the Gale court tells us that the Tenth Circuit does not favor stays of discovery. The Tenth Circuit is probably not very different from other courts in that respect. Judges everywhere at least pay lip service to the notion that things should move along. Thus, a party seeking a stay of discovery must “clearly show a compelling reason” for the stay. That sounds like a tough standard. The Gale court goes on to say that the pendency of a dispositive motion is not necessarily, er, dispositive in terms of supporting a stay of discovery. All that judicial throat-clearing aside, if it truly looks like the motion is likely to end the case, a stay of discovery makes sense, especially where the facts sought through the remaining discovery would not affect the ruling on the pending motion.

Perhaps that sounds a little squishy for your taste. Discovery is a one-way ratchet that plaintiffs use to bang corporate defendants on the noggin. It ends up costing much more money than most civil defendants who are found liable end up paying. Discovery also disrupts business operations. Those corporate witnesses who are forced to sit in conference rooms while plaintiff lawyers drone on endlessly with questions ending, “did I read that correctly?” actually have jobs to do. And what about the Sixth Amendment? But bank on this: the first thing that plaintiffs will say when you tell them you’re going to file a preemption motion is that they will need discovery to test the preemption theory.

Consequently, it is perfectly understandable that the defendant in the Gale case tried to find a more robust theory supporting a stay. What it came up with is the notion that a stay is appropriate “when the party requesting it has filed a dispositive motion asserting absolute immunity.” Okay, we get why the defendant dresses preemption in the garb of immunity. We have more than once praised the power of preemption in that it halts a case even if so many other aspects of the claim are in the plaintiff’s favor. The defendant even found a Tenth Circuit case that used the word “immunity” to describe the protection from state tort suits that preemption brings. But the Gale court held that the use of the word “immunity” was merely “coincidental” or rhetorical, and refused to extend the immunity analysis to the defendant’s request to stay discovery pending resolution of the preemption motion.

Still, in Gale, the defendant had a very good PMA preemption defense – that is to say, it had a PMA preemption defense. Perhaps preemption is not technically “immunity,” but the same considerations warrant a stay of discovery pending decision on the preemption issue. It helped that the defendant cited six cases – four federal and two state – that stayed discovery pending similar motions to dismiss by the same defendant. Maybe those cases weren’t controlling, but they gave the Gale court reason for pause – and reason to pause discovery in that case, because a grant of the motion to dismiss seemed likely enough. PMA preemption is, or at least should be, fairly straightforward, and no discovery dreamt up by plaintiff lawyers can affect the analysis. Therefore, even absent a specific showing by the defendant that the discovery in the Gale case was especially burdensome, any discovery would turn out to mean “the parties would have incurred unnecessary expense.” The Gale court exercised its discretion to stay discovery.

What is the ultimate takeaway from Gale? Forget about the rejection of the immunity argument. That was a clever argument that was hardly devoid of merit, but it is no shocker that the court didn’t plump for it. The court was probably worried about how far that theory might go. No, the meaning of Gale is that the pendency of a PMA preemption motion by itself establishes a clearly compelling reason to stay discovery. It might be a good idea to lay out for the court why discovery would be gruesomely oppressive and costly, but Gale says you do not need to do that.