Hix v. Biomet, Inc.
Hix v. Biomet, Inc.
2021 WL 8650494 (D. Nev. 2021)
July 29, 2021
Cobb, William G., United States Magistrate Judge
Summary
The court considered all of the evidence and arguments presented, including ESI, before denying Biomet's Motion for Sanctions and Hixes' Motion to Compel. The court also noted that the amended complaint filed on July 15, 2020, added Liana Hix as a party plaintiff and that the minutes and transcript of proceedings were filed in the case. This ensured that all relevant evidence was taken into account when making a decision.
RANDALL HIX and LIANA HIX, Plaintiffs
v.
BIOMET, INC., et al., Defendants
v.
BIOMET, INC., et al., Defendants
Case No. 3:18-cv-00437-RCJ-WGC
United States District Court, D. Nevada
Filed July 29, 2021
Counsel
Aigner Shanea Kolom, Pro Hac Vice, David Bryson Byrne, III, Pro Hac Vice, Navan Ward, Jr., Pro Hac Vice, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL, Peter C. Wetherall, Wetherall Group, Ltd., Las Vegas, NV, for Plaintiffs.Emily Steeb, Pro Hac Vice, Matthew T. Albaugh, Pro Hac Vice, Victoria Redstone Calhoon, Pro Hac Vice, Adrienne Franco Busby, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Indianapolis, IN, Joseph M. Price, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, LeAnn Sanders, Alverson Taylor & Sanders, Las Vegas, NV, Tarifa Belle Laddon, Pro Hac Vice, Theodore E. O'Reilly, Pro Hac Vice, Rita Mansuryan, Faegre Drinker Biddle & Reath LLP, Los Angeles, CA, for Defendants Biomet Inc., Biomet Orthopedics, LLC, Biomet U.S. Reconstruction, LLC, Biomet Manufacturing, LLC.
Emily Steeb, Pro Hac Vice, Matthew T. Albaugh, Pro Hac Vice, Victoria Redstone Calhoon, Pro Hac Vice, Adrienne Franco Busby, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Indianapolis, IN, Joseph M. Price, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, Theodore E. O'Reilly, Rita Mansuryan, Tarifa Belle Laddon, Faegre Drinker Biddle & Reath LLP, Los Angeles, CA, Karie N. Wilson, LeAnn Sanders, Alverson Taylor & Sanders, Las Vegas, NV, for Defendant Zimmer Biomet Holdings, Inc.
Cobb, William G., United States Magistrate Judge
Order Re: ECF No. 251
*1 Before the court is Defendant Biomet, Inc.’s (“Biomet”) Motion for Sanctions against Plaintiffs Randall and Liana Hix (“Hix”) and their attorney, Navan Ward, Jr. (“Mr. Ward”). (ECF No. 251). Hix filed a Response. (ECF No. 254). Biomet filed a Reply. (ECF No. 267). For the reasons set forth below, Biomet's Motion for Sanctions is denied.
I. BACKGROUND
This case arises from Hixes’ allegations of dangerous design defect, failure to warn, breach of express warranty, violations of the Consumer Protection Act, negligence, negligent misrepresentation, breach of implied warranties, and loss of consortium against Biomet. (ECF No. 201). Hix alleged that Biomet produced and sold an “unsafe, defective, and inherently dangerous” metal-on-metal hip replacement device that released metal shavings into the patient's body. (Id., ¶79). Randall Hix received the device after a July 2010 total left-hip replacement surgery. (Id., ¶54). After the implantation of the device, Randall Hix allegedly suffered “significant harm and injury” and had the implant removed and subsequently replaced. (Id., ¶64, ¶76).
Randall Hix filed his original Complaint on March 27, 2014. (ECF No. 1). An amended complaint was filed subsequently on July 15, 2020.[1] (ECF No. 201). Discovery was divided into two phases: (1) “common issue” discovery related to the hip implants and that all plaintiffs may need, and (2) “case-specific” discovery that pertained only to each individual plaintiff. The Plaintiffs in each case had to complete common discovery in the Multidistrict Litigation (MDL) by August 2018. (ECF No. 252, 1). Hixes’ case was transferred back to this court on September 11, 2018 for further case-specific discovery and proceedings. (ECF No. 181).
In September 2020, Hix served Biomet with interrogatories and requests for admissions. (ECF No. 211-6 and 7). Out of 108 initial discovery requests, Biomet disputed 34 requests as “common issue discovery” that should have been undertaken in the MDL discovery. (ECF No. 254, 4:24-25). After multiple meet-and-confers, either due to Hix withdrawing the request or Biomet agreeing to respond to the request, only seven (7) disputed requests remained. (ECF No. 254, 1-4).
Biomet filed a Motion for Protective Order on October 9, 2020, and stated it was not obligated to respond to Requests for Admissions Nos. 8-13 and 19 because the requests sought “common issue discovery.” (ECF No. 209, 7). Requests for Admissions Nos. 8-13 inquired about various aspects of Biomet's knowledge surrounding the hip implant in July 2010. (Id., 3-6). Requests for Admissions No. 19 asked Biomet to admit that “a revision surgery is one in which at least one hip implant component is replaced with another.” (Id., 7).
Hix in turn filed a Motion to Compel on November 2, 2020, and asserted that Biomet must respond to Requests for Admissions Nos. 8-13 and 19 because they sought “case-specific discovery.” (ECF No. 221). In addition, Hix also sought responses to Requests for Admissions Nos. 35, 39, 41 and Request for Production Nos. 26 and 30. (Id., 9-13). The dispute over these latter requests did not involve the common versus case-specific discovery issue.
*2 Biomet returned to MDL Presiding Judge, Robert L. Miller, Jr., District Judge for the Northern District of Indiana, and asked for sanctions against Navan Ward, Hixes’ counsel.[2] (ECF No. 248-1). Biomet argued that Mr. Ward disobeyed Judge Miller's August 2020 Order and “unreasonably and vexatiously multiplied the proceedings.” (Id., 5). Judge Miller's August 2020 Order required Mr. Ward to (1) correct his prior statement that the common discovery deadline was a “suggestion”, (2) state that common discovery was to be conducted in the MDL court and was supposed to be completed by August 2018, and (3) clarify that the additional discovery authorized by Judge Miller's March 2020 Order was limited to documents that had already been produced in the state cases. (ECF No. 248-1, 7).
On March 11, 2021, Judge Miller sanctioned Mr. Ward under 28 U.S.C. § 1987, the court's inherent authority, and Fed. R. Civ. 41(b) for failing to comply with the August 2020 Order. (Id., 8). However, Judge Miller stated that, “to the extent Biomet seeks attorney's fees and costs incurred in responding to common issue discovery requests that were made in Hix, Harbison, and other cases after jurisdiction was transferred to the trial courts, it must seek relief in those courts.” (Id.)(emphasis added).
On March 22, 2021, this court held a hearing on Hixes’ Motion to Compel (ECF No. 221) and Biomet's Motion for Protective Order (ECF No. 209). Throughout the hearing, this court asked Biomet if it had been asked questions similar to Requests for Admissions Nos. 8-13 and 19 during the MDL common issue discovery. (ECF No. 254-3, 10: 20-23). Biomet stated that “in so many words” it had been asked those questions (Id., 10: 24-25), but could not provide the court with specific examples. (Id., 17: 11-14). Biomet further asserted that, even if the questions were not asked during the MDL, they should have been asked because the requests clearly sought common issue discovery. (ECF No. 254-3, 19). Although this court expressed “disappointment that defense counsel [Biomet] could not provide specifics about when these questions or similar questions were asked in common discovery”, it ultimately concluded that the requests should have been asked in the MDL Litigation. (Id., 35-36).
The court concluded Requests for Admissions Nos. 8-13 and 19 sought common discovery and granted Biomet's Motion for Protective Order. (ECF No. 254-3, 36). Therefore, Hixes’ Motion to Compel as to those Requests for Admissions was denied as moot. (ECF No. 252, 2). The court also concluded that Biomet had already responded to Request for Production No. 30 and denied Hixes’ Motion to Compel as to that request. (Id., 3).
The court granted in part Hixes’ Motion to Compel and held that Biomet must answer Requests for Admissions Nos. 35, 39, and 41 and revise its response to Request for Production No. 26. (ECF No. 252, 2-3). As noted above, the dispute over these particular requests did not concern the common versus case-specific discovery issue. Therefore, Hixes’ Motion to Compel failed on the common versus specific discovery issues, but prevailed on certain aspects of other disputed discovery issues.
At the conclusion of the court's lengthy March 22, 2021 hearing, the court stated its inclination was that “Hixes’ position with respect to the discovery requests was ‘substantially justified’ under Fed. R. Civ. P. 37.” (Id., 3). However, the court indicated it would await further briefing on the matter and granted Biomet leave to file its Motion for Attorney's Fees. (Id.)
On March 19, 2021, Biomet filed a Motion for Sanctions under Fed. R. Civ. P. 26(c) and 37(a)(5). Biomet asked this court to award attorney's fees for costs Biomet incurred in making its Motion for Protective Order and opposing Hixes’ Motion to Compel. (ECF No. 251). Despite this court granting Hixes’ Motion to Compel in part, Hix did not similarly pursue attorney's fees under Fed. R. Civ. 37(a)(5)(C). Fed. R. Civ. 37(a)(5) states that “If the motion [to compel] is granted in part and denied in part, the court may (emphasis added), after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” This court will exercise its discretion and will not award Hix attorney's fees for their partial success in the Motion to Compel.
II. LEGAL STANDARD
a. Fed. R. Civ. P. 37(a)(5)
*3 If a motion for protective order is granted, the court, after giving an opportunity to be heard, must require the party whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. Fed. R. Civ. P. 37(a)(5). Similarly, if a motion to compel is denied, the court, after giving an opportunity to be heard, must require the movant, the attorney filing the motion, or both to pay the party who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. Fed. R. Civ. P. 37(a)(5)(B). But the court must not order this payment if the opposing party's response or objection was substantially justified, or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(ii-iii).
b. The Court's Discretion in Imposing Fed. R. Civ. P. 37 Sanctions
Whether to impose sanctions under Fed. R. Civ. P. 37, and which sanctions to impose, are matters within the discretion of the district court. Stookey v. Teller Training Distributors, Inc., 9 F.3d 631, 27 Fed. R. Serv. 3d 325 (7th Cir. 1993); Phipps v. Blakeney, 8 F.3d 788, 27 Fed. R. Serv. 3d 1314 (11th Cir. 1993); Unity Courier Serv. Inc. v. Hudson Ins. Co., Case No.: 218-cv-08143-RGK-GJS, 2019 WL 6974309, at *3 (C.D. Cal. Nov. 6, 2019).
In exercising its discretion, the Court may consider the exceptions available under Federal Rule of Civil Procedure 37(a)(5)(A). Limtiaco v. Auction Cars.Com, LLC, Case No. 2:11-cv-00370-MMD-CWH., 2012 WL 5179708, *1 (D. Nev. Oct. 17, 2012). The motion is substantially justified if it raises an issue about which there is a genuine dispute or if reasonable people could differ as to the appropriateness of the contested action. Pierce v. Underwood, 487 U.S. 552, 565 (1988). Further, even if there is no substantial justification, sanctions should not be imposed if other circumstances make such sanctions “unjust.” Hyde & Drath v. Baker 24 F.3d 1162, 1172 (9th Cir. 1994). [G]ood or bad faith may be a consideration in determining whether imposition of sanctions would be unjust. Painter v. Atwood, Case No. 2:12-cv-01215-JCM-RJJ 2013 WL 4774762, *2 (D. Nev. Sept. 3, 2013).
III. DISCUSSION
A. The Court Denies Biomet's Motion For Sanctions Because The Court Cannot Conclude That Hixes’ Conduct Was Not Substantially Justified. In Addition, the Circumstances Make an Award of Expenses Unjust.
The court will exercise its discretionary power and deny Biomet's Motion for Sanctions. The court cannot conclude that Hixes’ discovery dispute was not substantially justified. In addition, there are circumstances that, on balance, “make an award of expenses unjust.”
To begin, Biomet could not provide the court with proof that the disputed discovery questions, or similar questions, were asked in the MDL. During the March 22, 2021 hearing, this court expressed disappointment at Biomet's failure to “provide specifics about when these questions were asked in common discovery.” (ECF No. 254-3, 35: 22-25). Ultimately this court concluded that Hixes’ requests were common discovery and should have been asked during the MDL. (Id., 36: 6-11). However, this court indicated a reluctance to award fees and stated, “[The court] agonized for a long time before this hearing. [The court] agonized over them for a long time at this hearing. It's not black and white.” (Id., 61: 1-3). As such, because there was a “genuine dispute” over which “reasonable people could differ as to the appropriateness of the contested action”, the court cannot conclude that Hixes’ discovery conduct was not substantially justified. Pierce, 487 U.S. 552, 565.
In addition to the “genuine dispute” over whether the requests sought common or case-specific discovery, the circumstances surrounding the dispute make an award of sanctions “unjust.” [G]ood or bad faith may be a consideration in determining whether imposition of sanctions would be unjust. Painter, 2013 WL 4774762, *2. Hix initially approached Biomet with 34 discovery requests that they believed were case-specific. (ECF No. 254, 4:24-25). After multiple meet-and-confers, only seven (7) disputed requests remained. (ECF No. 254, 1-4). These facts indicate Hix seemingly exercised good faith in pursuing the remaining disputed requests as case-specific and needed to be addressed by this court. The court concludes that Hixes’ Motion to Compel and Hixes’ opposition to Biomet's Motion for Protective Order were not based on bad faith.
*4 The court will exercise its discretion and deny Biomet's Motion for Sanctions because reasonable minds could differ over whether the discovery requests were common or case-specific. The court demonstrated that genuine dispute in its lengthy discussion of the issues during the March 22, 2021 hearing.[3] As such, the court cannot conclude that Hixes’ conduct was not substantially justified. In addition, the court further declines to impose sanctions because the circumstances surrounding the discovery dispute would make an award of sanctions “unjust.”
CONCLUSION
IT IS THEREFORE ORDERED that Biomet's Motion for Sanctions (ECF No. 251) is denied. The court also denies sanctions for Hixes’ Motion to Compel. (ECF No. 221).
IT IS SO ORDERED.
Dated: July 27, 2021.
Footnotes
Hixes’ Complaint (ECF No. 1) filed on March 27, 2014, just named Randall Hix as a plaintiff. An amended complaint filed on July 15, 2020, added Plaintiff's wife, Liana Hix as a party plaintiff. (ECF No. 201).
In re Biomet M2a Magnum Hip Implant Products Liability Litigation MDL 2391, No. 3:12-MD-2391, 2021 BL 86406 (N.D. Ind. Mar. 11, 2021).
(Minutes, ECF No. 252; Transcript of Proceedings, ECF No. 253).