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Litigation is about the subject at hand, of course.  Is the product really defective?  Did it really cause the alleged injury?  But litigation can also be about the litigation itself. It’s like that line in The Beatles’ Penny Lane: “And though she feels as if she’s in a play/She is anyway.” The process and its subject matter become self aware. But whereas Penny Lane was a joyful bit of pop artistry, litigation typically is bereft of joy or artistry. The discovery portion of litigation can be inordinately expensive and intrusive.  Sometimes – and maybe our cynical defense hack hearts are taking over at this point – it seems that plaintiffs will do everything possible to make discovery as expensive and intrusive as possible.  

In particular, as if the dinner bell was ringing with the commencement of discovery, plaintiff lawyers visibly salivate at the prospect of deposing every sales representative in sight (and maybe not even in sight).  Sales representatives who detail medical providers on the virtues of products must look like a tasty steak to a ravenous plaintiff lawyer.  Were those virtues oversold?  Were risks undersold?  And then there ensues the usual battle over whether sales rep depos are necessary, or how many are necessary, or how many antacids will be consumed as we wade through this dreary process. The process can get dreary because the process can get almost endless. And yet that need not be so.  Federal Rule of Civil Procedure 26 provides that a court, either on motion or on its own, “must” limit discovery if it finds that the discovery would be unreasonably cumulative, or could be obtained via a more convenient method, or is simply out of bounds.  

Baldwin v. DePuy Orthopaedics, Inc., 2023 U.S. Dist. LEXIS 54471 (N.D. Illinois March 30, 2023), is a useful magistrate discovery ruling applying Rule 26’s limiting principle and granting a protective order against depositions of a defendant’s detail representatives. The plaintiffs in Baldwin alleged that they were injured by a defective hip replacement medical device.  They contended that the defendant’s detail representatives had relevant information because they had “direct contact and communications regarding the device components at issue” with the plaintiff’s surgeons and because at least one of them attended each of the surgeries. The defendant filed a motion for a protective order prohibiting the depositions.

The court in Baldwin granted the protective order for the following reasons:  (1) The implanting surgeon had no recollection of receiving information about the device from those sources and “did not make clinical decisions for patients based on marketing material from device manufacturers” [you can get similar testimony from most doctors] and he could not recall any specific information he relied upon in selecting the device; (2)  All the information the sales rep would have come from the defendant, who had “already produced voluminous documents and witnesses for depositions [that is almost always the situation]; and 3) The presence of the sales reps during the surgery did not, without more, make their testimony relevant. 

On that last point, the plaintiffs tried to demonstrate a nexus between the sales reps’ presence in the operating room and the claims in the case by pointing to the testimony of surgeons in other cases regarding the same product.  But those other cases are, well, other cases.  The plaintiffs could not establish any relevant nexus in this case, so the Baldwin court had no hesitation in granting the protective order and shutting down the sales rep depositions. (By the way, this is not the first time that we have discussed a case involving the significance, or lack of significance, of sales rep presence in the operating room. See here, for example.)