LeGrand v. Abbott Laboratories

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CONDALISA LEGRAND, Case No. 22-cv-05815-TSH

8 Plaintiff, DISCOVERY ORDER 9 v. Re: Dkt. Nos. 107, 108, 109 10 ABBOTT LABORATORIES, 11 Defendant.

12 13 The parties have three discovery disputes. ECF Nos. 107, 108 and 109. The Court rules as 14 follows. 15 A. ECF No. 107 (Plaintiff’s Initial Disclosures) 16 Abbott contends that Plaintiff’s initial disclosures do not adequately disclose Plaintiff’s 17 damages claims. Rule 26(a)(1)(A)(iii) requires “a computation of each category of damages 18 claimed by the disclosing party – who must also make available for inspection and copying as 19 under Rule 34 the documents or other evidentiary material, unless privileged or protected from 20 disclosure, on which each computation is based, including materials bearing on the nature and 21 extent of injuries suffered . . .” 22 Plaintiff’s initial disclosures say the following concerning damages:

23 Without waiver of calculations of additional categories of damages, Plaintiffs seek restitution and/or damages according to—without 24 limitation—at least one of the following damages models:

25 a. The full purchase price of subject sales (equivalent to the amount consumers spent at retail on the products during the 26 relevant period);

27 b. The difference in the value of the challenged products as 1 c. The price premium Abbott’s products carry compared to similar products without misleading advertisements; 2 d. The amount of the purchase price of subject sales that went 3 to Abbott (i.e., Abbott’s gross sales);

4 e. Abbott’s gross sales less its costs (i.e., Abbott’s profits);

5 f. Increase in market share of the Abbott products attributable to the misleading advertisements; and 6 g. Statutory damages. 7 The documents and information required to calculate the amount of 8 damages or restitution under each model more precisely are in Abbott’s possession, custody, and control, and include, inter alia, unit 9 and dollar sales and related financial information during the Class Period, including but not limited to audited financial statements and 10 any related audit trails. Documents and information required to calculate the amount of damages or restitution under each model may 11 also be in the possession, custody, or control of third parties.

12 Plaintiffs are further entitled to recover punitive damages, and attorneys’ fees and costs of the action, in amounts that remain to be 13 determined. 14 Thus, Plaintiff’s initial disclosures contain seven high-level ideas for how damages might 15 be measured, and that’s about it. 16 “Where, as here, the plaintiff’s damages are not the product of a simple mathematical 17 calculation and require expert testimony, the damages calculations need not be produced with the 18 plaintiff’s Rule 26(a)(1) disclosures and may be produced as part of the party’s Rule 26(a)(2) 19 disclosures.” Kingsway Financial Services, Inc. v. Pricewaterhouse-Coopers LLP, 2006 WL 20 1520227, *1 (S.D.N.Y. June 1, 2006). However, “the party making a claim for damages has the 21 obligation, when it makes its initial disclosures, to disclose to the other parties the best information 22 then available to it concerning that claim, however limited and potentially changing it may be.” 23 Id. (cleaned up); see also City and County of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 24 219, 221-22 (N.D. Cal. 2003) (“the Court does not yet mandate disclosure of precise calculations 25 given that many of the documents which are likely to inform the calculation remain in Defendants’ 26 hands and some level of expert analysis may be required,” but “[t]he Court concludes that Plaintiff 27 should provide its assessment of damages in light of the information currently available to it so as 1 exposure and make informed decisions as to settlement and discovery.”). “Plaintiff’s precise 2 method of calculation need not be disclosed to the extent the method is properly the subject of 3 expert testimony and the parties will be turning over expert evidence in the future.” Frontline 4 Medical Associates, Inc. v. Coventry Health Care, 263 F.R.D. 567, 569 (C.D. Cal. 2009) 5 (emphasis original). But “[f]uture expert analysis does not relieve Plaintiff of its obligation to 6 provide information reasonably available to it as gross revenues, expenses and any other 7 component of its lost profits computation.” Id. at 570. 8 Plaintiff presents argument as if the only possibilities are to (1) prematurely disclose her 9 expert reports by disclosing the exact details of her damages methodologies and calculations, or 10 (2) disclose nothing in terms of numbers or estimates. However, as discussed above, the case law 11 does not agree with that. Plaintiff is obligated to disclose the best information available to her, 12 and it is not true that until an expert report is produced a litigant has no information and knows 13 nothing. Plaintiff must disclose what she can estimate now based on the information known to her 14 about the various types of damages she is seeking, and must identify now documents or other 15 evidentiary material those estimates are based on. “[T]he Court contemplates that Plaintiff[] will 16 update [her] disclosure and provide greater detail as to [her] calculations as discovery progresses.” 17 Tutor-Saliba Corp., 218 F.R.D. at 222. 18 Accordingly, Abbott’s motion to compel Plaintiff to supplement her damages disclosures 19 is GRANTED. 20 B. ECF No. 108 (Plaintiff’s Health) 21 Abbott moves to compel concerning its interrogatory (“rog”) 7, and request for production 22 (“RFP”) 16. 23 Rog 7 asked: “Explain what adverse health effects, if any, You believe are caused by the 24 added sugar in the Ensure Products and the basis for Your belief, and whether You allege that You 25 have experienced any of these adverse health effects by consuming Ensure Products.” Plaintiff 26 answered the first half of this rog, listing health effects she believes are caused by the added sugar 27 and generally referring to why she thinks that. Abbott doesn’t seem to have a problem with that 1 she alleges that she has experienced any of these health effects. 2 RFP 16 asked for: “All medical records or other Documents relating to or substantiating 3 any adverse health effects You claim that You have experienced as a result of having consumed 4 || the Ensure Products.” 5 The Court DENIES the motion to compel. Plaintiff “seek[s] economic damages, not 6 || damages for bodily injury, and... a specific class member’s health has no bearing on whether the 7 challenged health statements are false, deceptive or materially misleading.” Krommenhock v. Post 8 || Foods, LLC, 2018 WL 4203660, *1 (N.D. Cal. Aug. 30, 2018). 9 C. ECF No. 109 (Plaintiff’s Interrogatories) 10 Plaintiff served rogs 16, 17 and 22, and Abbott declined to respond, contending that 11 Plaintiff exceeded the 25 rogs permitted by default by Rule 33(a)(1). Plaintiff argues that she did 12 not exceed 25 rogs. In the alternative, she seeks leave to serve rogs 16, 17 and 22 pursuant to 13 Rules 33(a)(1) and 26(b)(1) and (2). The Court declines to address the rog counting dispute and 14 || instead GRANTS Plaintiff's alternative request and authorizes her to serve rogs 16, 17 and 22. 3 15 || These rogs seek relevant information and are proportional to the needs of the case. Plaintiff's a 16 || request complies with Civil Local Rule 33-3 because in the joint discovery letter brief she 3 17 summarizes the proposed additional rogs and includes their full text in exhibits 1 and 2 to the letter S 18 || brief, and the letter brief also explains why it is necessary to propound the additional questions. 19 IT IS SO ORDERED. 20 21 Dated: December 11, 2024 22 A\.|\"4 _ THOMAS S. HIXSON 23 United States Magistrate Judge 24 25 26 27 28