May 23, 2013 ~ Buried inside some rather routine motions filed in the upcoming federal lawsuits filed in federal court in Charleston, West Virginia are some company secrets that C.R. Bard would rather keep secret.
In Order #77 Plaintiffs want to take the deposition of C.R. Bard executives Roger Darois and Dan LaFever. The court denies the motion as moot, granting in part and denying in part a 189 motion by Carolyn Jones for Leave to take the supplemental deposition of Mr. Darois, but may not depose Mr. LaFever.
The motion reopens discovery for the purpose of deposing Darois about email communications. Roger Darois is the Vice President of Research and Advanced Technologies for Davol, a subsidiary of C.R. Bard, Inc. based in Murray Hill, New Jersey.
This is a supplemental deposition. In the first deposition of Mr. Darois, lawyers discovered two chain emails where he discusses the issue of raw polypropylene resin used during mesh production. Enclosed in a Material Safety Data Sheet (MSDS), resin is not to be used in medical devices that are permanently implanted in the human body.
“Contrary to this warning, Defendant used the resin in its mesh products, which were specifically intended for permanent implantation.”
“Plaintiffs claim further that the email chains reveal Defendant’s deliberate intent to conceal its improper use of the resin from the manufacturer, Phillips Sumika, for fear that Phillips Sumika would not supply the resin if it understood Defendant’s intended application.”
The motion says Bard realized that Phillips Sumika probably knew it made medical devices, so as a diversion, Bard created a wholly-owned subsidiary Red Oak Sales Company, that purchased resin from Phillips Sumika “without creating suspicion about its use.”
Plaintiffs argue this information is “highly relevant to their case.”
Dan LaFever’s deposition is also sought, He is the President of Davol and was a party to the email communications, according to the plaintiffs. “His deposition is important to explore the relationship between Davol and Red Oak, his knowledge of these issue [sic] and why he would allow such nefarious conduct.”
This motion tells the court that the email communication in question were not produced by the Defendant until November 26, 2012 and December 4, 2012 “leaving Plaintiffs with insufficient time to review and digest them before Mr. Darois’s deposition on December 19, 2012.”
Judge Joseph Goodwin
Read more here.
Judge Joseph R.. Goodwin is overseeing almost 20,0000 filed lawsuits against five mesh manufacturers: Ethicon, C.R. Bard, American Medical Systems, Coloplast and Boston Scientific. On May 3, Judge Goodwin received a protective order establishing procedures for the handling of potentially confidential information produced during discovery. Here is the protective order:
It says that Highly Confidential or Confidential discovery can only be used “only for the purposes of the MDL actions for which the subpoenas were served.” In other words not for competing company or the public to see. If documents are inadvertently disclosed, “The producing party may, in the notice, request a “clawback” of the inadvertently disclosed material.”
Clawback allows taking back of evidentiary materials that were mistakenly turned over.
C.R. Bard wants to protect confidential material, specifically, “material the producing party believes in good faith constitutes or discloses information that qualifies for protection pursuant to Fed. R. Civ. P. 26 specifically information that is trade secret or other confidential research, development, or commercial information, and materials that are deemed confidential under Federal Drug Administration (FDA) regulations and Health Insurance Portability and Accountability Act (HIPPA) statutes and/or regulations.”
The order also covers confidential information produced by AdvaMed, which is a medical device lobby organization. Information such as, “research and development material on a new product that has not been approved or cleared by the FDA or a similar regulatory body or reflects a party’s price competitiveness in the market, or marketing business strategies, including current or recent sale and market data, of a party concerning a current or new product.”
Here is some back and forth status conference notes on the current MDL mesh litigation:
In Order #78, Plaintiffs ask to allow the exchange of confidential information among the five MDLs. Defendants say that Plaintiffs are seeking permission to use materials produced by a manufacturer in one MDL against manufacturers in the other MDLs. The defendants say they do not want confidential material to be released to a competitor. Here is Order #78.
Bard Upcoming Trials
There are four bellwether trials set in the Bard MDL beginning on Monday, July 8, 2013, at 8:30 a.m. in Room 7800 of the Robert C. Byrd United States Courthouse. At this time, the court plans to try the cases consecutively in the following order:
Cisson, et al. v. C. R. Bard, Inc. 2:11-cv-00195
Queen, et al. v. C. R. Bard, Inc. 2:11-cv-00012
Rizzo, et al. v. C. R. Bard, Inc. 2:10-cv-01224
Jones v. C. R. Bard, Inc. 2:11-cv-00114