Hershberger v. Ethicon Endo-Surgery, Inc.

277 F.R.D. 310, 2011 U.S. Dist. LEXIS 114607, 2011 WL 4708775
Procedural entryThis page is a short order in Hershberger v. Ethicon Endo-Surgery, Inc.. Read the opinion of the Court — 277 F.R.D. 299
District Court, S.D. West Virginia·Decided October 4, 2011·No. No. 2:10-cv-000837·Published

Opinion

MEMORANDUM OPINION AND ORDER

MARY E. STANLEY, United States Magistrate Judge.

In a Memorandum Opinion, Order and Recommendations filed August 12, 2011 (ECF No. 264, amended September 23, 2011, ECF No. 287, “the Sanctions Order”), the [311]*311Court granted the plaintiffs’ motion for sanctions (ECF No. 131), and indicated the need for additional information before determining the extent of the sanctions to be imposed. The additional information has been filed. This Order should be read with the Sanctions Order, as the facts and analysis contained in the Sanctions Order are not repeated here.

The Sanctions Order required defendant Ethicon Endo-Surgery (“Ethicon”) to submit “an affidavit by a person with extensive knowledge of the Siebel database and its metadata (not Kristi Geier), setting forth the following information regarding searches of the Siebel database concerning staplers, using the VOC code ‘would not staple,’ between February 6, 2009 and June 3, 2011: a. The date of each search; b. the name and title of the person who performed each search; and c. the results of each search.” (ECF No. 287, at 21.) Ethicon timely filed its response, which includes two affidavits by persons with knowledge of the Siebel database. (ECF No. 268.) According to the response, the Siebel database is not capable of producing a record of the searches which are made of it. Id. at 2. Thus it became necessary to examine employees’ computers for Excel files which would contain the results of a Siebel database query. Id. There were two queries, one on December 14, 2010, by Jamie Gast for the use of Theresa Vogel, and the other on March 8, 2011, by Ms. Vogel and Ms. Kristi Geier. Id. at 2-3.

The defendants state as follows with respect to the December 14, 2010 and March 8, 2011 searches:

On December 14, 2010, Jamie Gast, a member of Ethicon’s Customer Quality group, downloaded all records in Siebel related to all intraluminal staplers and transported that file into Excel for Theresa Vogel’s use. This download was not specific to CDH staplers ... and was not done by VOC code. Thus, although Mr. Gast did not query the VOC code “would not staple,” the records associated with this VOC code were included in his result as were the records for every VOC code for every model of intraluminal staplers.
Because the allegations in this case were that the stapler at issue was manufactured without staples and without a breakaway washer and as a result of conversations with Ms. Geier and the Customer Quality department, Ms. Vogel then excerpted out of this data file CDH complaints associated with the VOC codes “missing staples,” “anvil not returned,” “damaged component” and “staple retention” in order to search for complaints responsive to Plaintiffs’ Third Set of Requests for Production of Documents. Ms. Vogel did not query the VOC code “would not staple” and documents associated with that code were not part of the electronic group of records that Ms. Vogel and Ms. Geier worked from in answering these discovery responses because the request asked for reports which alleged that the device failed to fire due to a lack of staples.

(ECF No. 268, at 3.)

The March 8, 2011 query was triggered as a result of a question by an attorney with Guthrie & Thomas.

This was the first time the VOC code “would not staple” was queried in the Sie-bel system in relation to this case. The results of this query were transported into Excel and Ms. Vogel reviewed these complaints to determine if they contained documents that should have been coded as “missing staples” but had in fact been inadvertently coded as “would not staple.” Ms. Geier and Ms. Vogel did not believe that these “would not staple” documents were responsive to the Plaintiffs’ Third Set of Requests for Production of Documents seeking reports where a stapler failed to fire due to a lack of staples.
On May 25, 2011, counsel from Guthrie & Thomas had a conference call with Ms. Geier and Ms. Vogel in regard to responding to Plaintiffs’ Ninth and Tenth Sets of Requests for Production of Documents (which were different than the earlier requests) which by agreement of the parties were due on June 3, 2011. During that call Ms. Geier and Ms. Vogel discussed with counsel the documents that were retrieved in the March 8, 2011 search using the VOC code “would not staple.” As a result of the call, Ms. Geier sent the [312]*312“would not staple” documents to counsel for production.

Id. at 3-4.

Since February 19, 2009, the defendants have had actual knowledge of the plaintiffs’ allegations (based on the statements of Ms. Hershberger’s surgeons) with respect to the stapler, that is, the stapler was properly positioned, it was fired, the stapler cut the tissue but no staples were ejected. Whether the plaintiffs’ counsel described the incident as “stapler not loaded with staples,” (Request No. 16, First Set), or “stapler failed to fire due to a lack of staples,” (Request No. 1, Third Set), the allegations have remained the same throughout this litigation.

The plaintiffs served Request No. 16, First Set on August 24, 2010. (ECF No. 7.) Within thirty days of August 24, 2010, the defendants should have queried the Siebel database for information of other similar incidents, and they did not do so. Their response that “there are no documents,” was explained as being limited to litigation, which the undersigned has described in the Sanctions Order as “unreasonable in the extreme and, frankly, nonsensical.” (ECF No. 287, at 11.) After further review of Ms. Geier’s testimony at the July 28, 2011 hearing, and consideration of the defendants’ response to the Order at ECF No. 268, it appears that no query was made of the Siebel database for Request No. 16, First Set, even though Ms. Geier described the Siebel database as “when someone reports an incident with one of our devices, all of the information regarding that incident is captured in Siebel.” (ECF No. 267, at 73.) In short, the Siebel database is the single source for information of other similar incidents involving the defendants’ products. The defendants’ failure to search the database in the fall of 2010 is inexcusable and sanetionable.

The December 14, 2010 query of the database for information as to all intraluminal staplers was apparently prompted by the plaintiffs’ Request No. 1, Third Set, which asked for pertinent Product Inquiry Verification Reports. The production of one such Report, and the subsequent production of an additional six Reports are described in the Sanctions Order, at page 13. It is apparent that little effort was made to compare the facts of the instant litigation with the facts recited in the Siebel database entries relating to staplers. If care had been taken to confirm that the VOC codes were producing data relevant to this case, at least 44 records, and perhaps many more, should have been produced. As of December 14, 2010, Ms. Vogel had an Excel file with all the producible records within it.

The defendants have chosen to rely on the Siebel database despite its limitations, including the possibilities for errors in assigning a VOC code for a given report and in selecting VOC codes to find other similar incidents. Having made the choice to rely on the Siebel database, the defendants are responsible for the failures of their system.

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Hershberger v. Ethicon Endo-Surgery, Inc., 277 F.R.D. 310, 2011 U.S. Dist. LEXIS 114607, 2011 WL 4708775 (S.D.W. Va. 2011).

277 F.R.D. 310 (Hershberger v. Ethicon Endo-Surgery, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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