Oliver Martini (“Martini”) is the Director of Government Affairs & Policy for Johnson & Johnson Medical GmbH, a German entity owned or affiliated with Defendants.[1] Hence, Martini, who is a citizen and resident of Germany, is a corporate employee of Defendants.

Martini oversaw the laparoscopic intraperitoneal mesh registry (“LIPOM Study”) for Defendants. The LIPOM Study was a clinical study that sought to assess the effects of a standardized surgical technique on Physiomesh failure rates, and it is a study Defendants rely upon in defense of Plaintiffs' claims.[2] [Doc. 589/590, Exhibit 10]. During the relevant time period, Martini communicated directly with Dr. Achim Hellinger (“Dr. Hellinger”), who was the lead investigator for LIPOM as well as a participant in the Herniamed Registry (“Herniamed”).

Dr. Ferdinand Kockerling (“Dr. Kockerling”) served as the chairman of Herniamed. Data from Herniamed led Defendants to remove Physiomesh from the market worldwide in 2016. According to Defendants, unpublished Herniamed data from Dr. Kockerling received in June 2015 at Defendants' request showed that the 1-year self-reported recurrence rate for Physiomesh was higher than comparative meshes. [Doc. 589/590, Exhibits 1-4]. As a result, Defendants convened an internal medical safety committee to evaluate the Herniamed data. Defendants' safety committee also considered data from two other hernia registries and ultimately recommended the removal of Physiomesh from the market in May 2016.

According to Plaintiffs, Dr. Hellinger and the LIPOM Study are “inextricably intertwined with Herniamed.”[3] [Doc. 589 at 7]. Plaintiffs contend that Mr. Martini is believed to be the only witness with personal (first-hand) knowledge concerning the interrelationship between LIPOM and Herniamed, as well as the history of the LIPOM Study such as its initial intended size and purpose and any impediments or limitations, and the reasons why the LIPOM Study was never published. Plaintiffs seek to explore Martini's involvement and interactions with Dr. Kockerling and Herniamed. In short, Plaintiffs argue that they are entitled to depose Martini and to seek hernia registry documents that may involve Martini in order to discover information that may challenge or rebut Defendants' representations that the information that precipitated Defendants' removal of Physiomesh from the market in 2016 was not available to Defendants until 2015.[4] Plaintiffs state that their need to depose Martini was not clear until after documents were produced from other custodians in April, May, and June of 2020 revealed the extent of Martini's involvement. Plaintiffs seek to depose Mr. Martini as a fact witness.

*2 On June 2, 2020, Plaintiffs filed a Notice of Deposition requesting to depose Martini on July 17, 2020 and requesting production of documents responsive to identified search terms in advance of the deposition. [Doc. 570]. Defendants opposed Plaintiffs' request, the parties engaged in the meet and confer process, but ultimately raised this dispute during the June 9, 2020 Status Conference, at which time the Court authorized the filing of a motion by Plaintiffs. [Doc. 593 – Transcript of June 9, 2020 Status Conference (“6/9/20 Status Conference Tr.”) at 23].

Posture of MDL 2782 & Timeliness of Motion

The current posture of the consolidated multidistrict physiomesh litigation provides a useful framework. The parties have identified four cases out of the larger group of Trial Pool Cases for immediate trial workup.[5] [MDL 2782, Doc. 563 – Practice and Procedure Order (“PPO”) No. 21 (Amended Discovery, Scheduling, and Case Management Order – Trial Cases)]. With respect to the Trial Cases, all corporate and case specific (fact) discovery closed on July 29, 2019. [MDL 2782, Doc. 539 – PPO No. 20 (Amended Proposed Discovery, Scheduling, and Case Management Order – Initial Discovery Pool), ¶ 5(j)].[6] The First Trial Case has been selected and is scheduled to commence November 2, 2020. [MDL 2782, Doc. 621 – PPO No. 22, ¶ 2(a) (Jim B. Crumbley and Diane Crumbley v. Ethicon, Inc., et al. (“Crumbley”), Civil Action No. 1:18-cv-748-RWS)].

Of particular import here, the parties initially advanced competing interpretations of PPO 20, Paragraph 5(j),[7] namely, whether corporate discovery remained open in the Trial Cases and the meaning of “Trial Cases” after the most recent amendments to the Scheduling and Case Management Order (i.e., whether “Trial Cases” references the eight remaining Trial Pool Cases or the four Trial Cases recently selected for immediate trial workup, prompted by the coronavirus pandemic and the decision to proceed with final trial preparation with a smaller group of cases). [Doc. 602 at 2 n.1; Doc. 616]. According to Plaintiffs, it is agreed that “corporate discovery remains open for all non-Trial Cases, including the remaining Trial Pool Cases (Franklin, Murray, Keup, and Horton).” [Doc. 616 at 1 (citing Doc. 602 at 2, n.1)].[8] Therefore, Plaintiffs' Motion is timely.

*3 Significantly, in making the above statement, Plaintiffs concede in their Reply that all discovery (including corporate discovery) is now closed in the four Trial Cases selected for immediate trial workup and identified in PPO 21 (Bovian, Crumbley, Guffey, Smith). [Doc. 616 at 1, 5 (allowing deposition to proceed “will preserve testimony at a minimum, for use in the remaining Trial Pool Cases (Franklin, Murray, Keup, and Horton)”)].[9] Originally, Plaintiffs asserted that, because Martini has not been deposed and Plaintiffs have not designated any of his testimony for use in the Trial Cases, how his deposition testimony may be used is not ripe. [Doc. 589 at 16 n.6 (“Plaintiffs anticipate that Mr. Martini's testimony will be relevant to numerous issues in the Trial Cases”)]. At present, Plaintiffs do not propose use of Mr. Martini's deposition testimony in the Trial Cases.

The Court turns to the merits of Plaintiffs' Motion.

Motion to Compel Deposition

Plaintiffs request an Order compelling Defendants to produce Martini for deposition pursuant to the Stipulated Order Regarding Remote Deposition Protocol. [Doc 580]. And see FED. R. CIV. P. 37. Plaintiffs represent that the deposition can be narrowly tailored and will be both short in duration and discrete in terms of scope. [6/9/20 Status Conference Tr. at 10-12].

It is not clear that an order to compel Defendants' cooperation is necessary. Despite protesting Plaintiffs' request, primarily related to Plaintiffs' purported delay and the desire to avoid further disruption to the existing scheduling order and trial schedule, Defendants all but concede that Plaintiffs are entitled to this discovery. In Defendants' own words, “Defendants' position is not that the [Martini] deposition can never go forward, but that Plaintiffs cannot establish why it must go forward now for the First Trial Case.” [Doc. 602 at 2 n.1]. Plaintiffs further contend that the appropriate remedy is for Defendants to seek a protective order pursuant to FED. R. CIV. P 26(c), which Defendants declined to pursue. Ultimately, Defendants expressed their willingness to request that Martini make himself available for deposition without the need for process through the Hague Convention in the event Plaintiffs' Motion was allowed. [Doc. 602 at 9].

In the event an order compelling Defendants to produce Mr. Martini is required, Plaintiffs argue that Martini, as a foreign national and corporate employee, is subject to Defendants' control and can be compelled to testify as a “managing agent” of a corporate party upon notice. [Doc. 589 at 14; Doc. 602 at 9 n.3; Doc. 616 at 6-13]. And see generally Calderon v. Experian Information Solutions, Inc., 290 F.R.D. 508, 517 (D. Idaho 2013) (identifying relevant considerations in “managing agent” analysis). Mr. Martini's role as a “managing agent” cannot be seriously disputed given his role as Director of Government Affairs & Policy for Johnson & Johnson Medical GmbH, the German arm of Ethicon. See, e.g., E.I. DuPont de Nemours and Co. v. Kolon Indus., 268 F.R.D. 45, 48 (E.D. Va. 2010); and see In re Takata Airbag Prods. Liab. Litig., 2017 WL 8812735, *2 (S.D. Fla. 2017). Plaintiffs provide evidence reflecting the length of Martini's employment totaling fifteen+ years, the types of management roles Martini has held and the noteworthy contributions during his tenure, his supervisory authority over matters related to this litigation (including over the LIPOM Study), and his ability to exercise discretionary authority on Defendants' behalf – all of which show that Mr. Martini successfully climbed Defendants' corporate ladder. [Doc. 616 at 6-13, Exhibits E, F, G, H]. Put simply, the Court is persuaded that Mr. Martini's interests are sufficiently aligned with the interests of Defendants to justify compelling Defendants to produce Martini for deposition as a “managing agent” witness. See E.I. DuPont de Nemours and Co., 268 F.R.D. at 48; see also In re Honda, 168 F.R.D. 535, 540 (D. Md. 1996). Finally, for the same reasons, the Court disagrees that requiring Defendants to fulfill Plaintiffs' request that document production be provided and/or supplemented regarding Mr. Martini amounts to “third-party” discovery. [Doc. 616 at 14-15].

*4 Plaintiffs' Motion to Compel the deposition of Mr. Martini will be granted.

Motion to Compel Production of Documents

In connection with the Notice of Deposition, Plaintiffs seek an Order compelling Defendants to produce documents in Mr. Martini's custodial file containing a specified list of search terms. [Doc. 570 – June 2, 2020 Notice of Deposition of Oliver Martini, Exhibit 1].

Defendants contend that Plaintiffs' Motion to Compel Production of Documents is not properly before the Court. [Doc. 589 at 18 n.7; Doc. 602 at 9]. Plaintiffs correctly point out that, during the June 9, 2020 Status Conference, counsel outlined the minutia of the parties' informal efforts to resolve the instant discovery dispute. [6/9/20 Status Conference Tr. at 9-23]. More specifically, counsel for Plaintiffs explained how discovery produced by Defendants within the last several weeks gave rise to concern that a “complete and fulsome” production of documents related to Mr. Martini had not occurred. [6/9/20 Status Conference Tr. at 9-11]. The parties' inability to resolve the dispute prompted Plaintiffs' June 2, 2020 Notice of Deposition for Mr. Martini and corresponding request for production of documents. Notably, during discussion of this topic, Defendants' counsel requested that the document production issue be reduced to writing and that Plaintiffs be required to file a formal motion. [6/9/20 Status Conference Tr. at 17]. The Court finds that Plaintiffs have complied with the Court's standard procedure for seeking to resolve discovery disputes informally.

In February 2020, Plaintiffs began to address with Defendants what Plaintiffs deemed deficiencies in Plaintiffs' requests for documents related to hernia registries, and the parties made numerous efforts to meet and confer over the next few months. [Doc. 589/590, Exhibits 6-9]. Plaintiffs contend that the documents produced to date must be deficient given the relationship and necessary communications that would have taken place as a matter of course between persons involved in the hernia registries, including Dr. Hellinger, Dr. Kockerling, Mr. Martini, and others. [Doc. 589/590, Exhibit 12]. As noted above, Plaintiffs' Motion seeks production of documents from Martini's custodial files for documents containing specific terms primarily designed to locate evidence regarding Martini's involvement in registry-related matters.

The briefing on this issue reveals Plaintiffs' legitimate need and request for both the deposition of Mr. Martini and the documents Plaintiffs request. Plaintiffs persuade that the documents sought are not only discoverable but are likely highly probative of critical factual issues in MDL 2782. By way of example, Plaintiffs refer to a document produced by Defendants on May 30, 2020 from the files of Cecile Petralli (“Petralli”), a former employee of Defendants who was involved with the registries. Petralli's files included correspondence dated May 2013 between Petralli and Martini in which Petralli inquired about Defendants' access to Herniamed in order to refute information shared during “a lecture given at EHS that was not exactly positive for [Defendants'] Physiomesh.” [Doc. 589/590, Exhibit 17 (emphasis added)].[10] Plaintiffs assert, as a follow-up, that a meeting was scheduled with Dr. Kockerling in July 2013 for this purpose, and that Dr. Kockerling advised Defendants' representatives of significantly higher rate of mesh failure associated with Physiomesh compared to other mesh devices in the Herniamed Registry – confirming the negative reports about Physiomesh. [Doc. 589/590, Exhibit 18 at 4]. Another document produced by Defendants on May 30, 2020 reveals that Martini initiated an electronic interface between LIPOM and Herniamed in 2013. [Doc. 589/590, Exhibit 19]. According to Plaintiffs, documents responsive to Plaintiffs' request for production establish Defendants' access to Herniamed and unfavorable analyses of Physiomesh dating back to 2013. [Doc. 589/590, Exhibits 17, 18, 19, 20]. As discussed supra, Defendants contend that this knowledge came years later and that the information that precipitated Defendants' removal of Physiomesh from the market in 2016 was not available to Defendants until mid to late 2015. [Doc. 589/590, Exhibits 1-4].

*5 Plaintiffs' Motion for Production of Documents is likewise granted.

Conclusion

In conclusion, Plaintiffs' Motion to Compel is granted. As for Plaintiffs' request to depose Mr. Martini, the instant ruling only permits the Plaintiffs' deposition of Martini to go forward and does not decide how the testimony may be used or when. As previously discussed, Plaintiffs' Reply brief indicates that Plaintiffs no longer seek to obtain Mr. Martini's deposition testimony for use in the first four Trial Cases delineated in PPO No. 21, including the First Trial Case.

It is hereby ORDERED that Plaintiffs' Motion to Compel Deposition of Oliver Martini and Production of Documents [Doc. 589] is GRANTED. The parties are directed to meet and confer concerning the details since Plaintiffs' original requested deposition date is no longer feasible. The parties shall decide upon a mutually agreed date for Mr. Martini to be deposed as well as a timeline in advance of the deposition date to provide Plaintiffs with the document production at least 21 days before the scheduled deposition.

SO ORDERED this 11th day of August, 2020.

Johnson & Johnson Medical GmbH manufactures Physiomesh and does business as Ethicon, Inc., which is listed as the owner/operator of Johnson & Johnson Medical GmbH.

Defendants have reportedly elicited testimony from their corporate and expert witnesses that the LIPOM Study demonstrated the safety of Physiomesh and that LIPOM showed lower failure rates for Physiomesh than other hernia registries, including the Herniamed Registry.

Dr. Kockerling and Dr. Hellinger are co-authors of a journal article published in December 2018 relating to Physiomesh entitled, The Importance of Registries in the Postmarketing Surveillance of Surgical Meshes. [Doc. 589, Exhibit 11].

Plaintiffs' opening brief contains a more detailed explanation of the importance of the Herniamed Registry, the LIPOM Study, hernia registry-related correspondence, and Defendants' decisions and actions taken (or omissions) in connection with the information gleaned from each. [Doc. 589 at 3-14].

As a case management strategy, there are different schedules established for conducting fact and expert discovery in the Trial Pool Cases and the multidistrict physiomesh litigation as a whole, and, likewise, different deadlines for the bellwether trial-related filings in the first four Trial Cases selected by the parties, including the First Trial Case.

The deadlines for disclosing expert witnesses and providing expert reports for the Trial Cases has also expired. [PPO No. 20, ¶ 5(b) (Plaintiffs: August 5, 2019; Defendants: September 16, 2019)]. And the deadline for completing expert discovery in the Trial Cases was July 15, 2020. [PPO No. 21, ¶ 1(b)].

PPO 20, Paragraph 5(j) reads:

Whether Defendants agree with Plaintiffs' statement is unclear from the filings. Defendants begin their Response in Opposition by arguing that “Corporate and case-specific discovery in the Trial Cases ended on July 29, 2019.” [Doc. 602 at 2 (citing PPO Nos. 16-20)]. The footnote in Defendants' opposition brief that Plaintiffs point to does not expressly limit the term “Trial Cases” to the four being prepared for trial now and subsequently listed in PPO No. 21. And, as noted supra, PPO No. 20 distinguishes between “Trial Pool Cases” and “Trial Cases.”

Plaintiffs subsequently hint that they may ultimately seek to use Mr. Martini's deposition testimony in the First Trial and correctly state that the gist of Defendants' opposition is timing and potential use in the First Trial Case. [Doc. 616 at 5-6; Doc. 602 at 7].

In response to Petralli, Martini suggested clarifying the clinic results and checking to see if reports were already available from Herniamed and other sources. He also questioned whether Defendants would want to request a product analysis of the Physiomesh Herniamed data from Dr. Kockerling, noting that it may end up being published. [Doc. 589/590, Exhibit 17].