Bird v. Globus Medical, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTINA BIRD and CLARENCE No. 2:19-CV-01024-KJM-CKD BIRD, 12 Plaintiffs, 13 ORDER v. 14 GLOBUS MEDICAL, INC., and DOES 1- 15 100, 16 Defendants. 17 18 Before the court is defendant’s motion to compel further discovery responses, documents, 19 and signed authorizations for medical and financial records and request for sanctions. ECF No. 20 24. Plaintiffs filed a statement of non-opposition as to all matters in defendants’ motion except 21 the request for sanctions. ECF No. 26. The parties timely filed a Joint Statement. ECF No. 27. 22 The court heard oral argument via Zoom hearing on July 29, 2020. Having considered the 23 relevant documents and arguments of the parties, the court finds as follows. 24 I. BACKGROUND 25 a. Case Background 26 This is a products liability suit involving a medical device manufactured by defendant. 27 Christina Bird had defendant’s medical device implanted in her cervical spine. She alleges that 28 the device has migrated out of position, causing her pain and discomfort. On March 21, 2019, 1 Mrs. Bird and her husband filed suit in the San Joaquin County Superior Court, alleging that 2 defendant failed to provide proper warnings and instructions regarding the device’s intended use. 3 Defendant timely removed. ECF No. 1. 4 b. The Current Discovery Dispute 5 On February 12, 2020, defendant served plaintiffs with (1) a request for the production of 6 documents, (2) interrogatories to Christina Bird, and (2) interrogatories to Clarence Bird. 7 On March 16, 2020—the day plaintiffs’ responses were due—plaintiffs requested a two- 8 week deadline extension, which defendant granted. 9 On March 30, 2020—the day plaintiffs’ responses were due under the extended 10 deadline—plaintiffs’ counsel notified defense counsel that he has been unable to contact his 11 clients for “a few days” and would try to serve responses by April 1, 2020. 12 On April 1, 2020, plaintiffs served their discovery responses. 13 On April 6, 2020, defense counsel informed plaintiffs’ counsel that Clarence Bird had 14 answered the interrogatories directed to Christina Bird. Plaintiffs’ counsel said that he would try 15 to correct the error as quickly as possible.1 16 On April 20, 2020, defense counsel sent a meet and confer letter to plaintiffs’ counsel, 17 outlining the deficiencies in plaintiffs’ discovery responses. The parties continued to meet and 18 confer in May and June. 19 On June 29, 2020, defendant filed the instant motion to compel, asking the court to order 20 plaintiffs to (1) supplement their discovery responses with complete information, (2) verify their 21 interrogatories, (3) execute the HIPPA releases and authorizations that were served with 22 defendant’s written discovery requests. Defendant asks the court to require plaintiffs to comply 23 with the order by August 15, 2020. Finally, defendant asks the court to award it monetary 24 sanctions, in the amount of $2,450.00, for the expenses incurred in making the motion to compel. 25 On July 16, 2020, plaintiffs filed an opposition, agreeing that defendant is entitled to all 26 matters sought in the motion to compel, except for the request for sanctions. ECF No. 26. 27 28 1 Clarence Bird eventually served responses to the correct set of interrogatories on June 2, 2020. 1 II. DISCUSSION 2 Defendant asks the court to order plaintiffs to supplement their discovery responses, verify 3 their interrogatories, and execute the HIPPA releases and authorizations no later than August 15, 4 2020, or else face the possibility of serious sanctions, including terminating sanctions. Plaintiffs 5 do not oppose this request. As such, the court will grant defendant’s motion to compel 6 discovery.2 7 In addition, defendant asks the court to award it $2,450 for the expenses incurred in 8 making the motion to compel. Plaintiffs oppose the request for sanctions. ECF No. 27 at 2:27- 9 28. Thus, the court must decide whether awarding defendant monetary sanctions is appropriate. 10 Federal Rule of Civil Procedure 37 provides that when a discovery motion is granted, the 11 court generally “must” order the opposing party or counsel to pay “the movant’s reasonable 12 expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). 13 An opposing party may avoid such an award only if: “[1] the movant filed the motion before 14 attempting in good faith to obtain the disclosure or discovery without court actions; [2] the 15 opposing party’s nondisclosure, response, or objection was substantially justified; or [3] other 16 circumstances make an award of expenses unjust.” Id. “The district court has great latitude in 17 imposing sanctions under” Rule 37. Lew v. Kona Hosp., 754 F.2d 1420, 1425 (9th Cir. 1985). 18 Here, neither the first nor second exception to the general rule apply. The briefings and 19 evidence establish that defendant made good faith attempts to obtain the requested discovery 20 without court intervention. And plaintiffs concede that defendant is entitled to the discovery, 21 foreclosing the possibility that their lack of response is substantially justified. The third 22 exception, however—whether “other circumstances” make awarding defendant its expenses 23 unjust—may weigh against a sanctions award. 24 In their briefing, plaintiffs argue that they have been unable to provide the supplemental 25 responses and authorizations “due to extraordinary circumstances over the last three months.” 26 ECF No. 26-1. Specifically, “in March, during the onset of the [COVID-19] pandemic, Clarence 27 2 At the July 29, 2020 hearing, plaintiffs’ counsel requested that the proposed deadline of August 28 15, 2020 be extended by one week. The court will grant plaintiff’s request. 1 Bird fell ill and required hospitalization.” Id. “Shortly after he was discharged from the hospital, 2 the family [plaintiffs] were staying with were evicted from their home” in California. Id. 3 Plaintiffs attempted to find a new residence in California, but they were unable to secure 4 subsidized housing because they still owned a home in Amarillo, Texas. Id. Plaintiffs sold their 5 Texas home, acquired a mobile home, and are now returning to California. Id. According to 6 plaintiffs’ counsel, plaintiffs have effectively been homeless during the past several months, 7 without a permanent mailing address. 8 The court finds that plaintiffs’ circumstances make an award of monetary sanctions under 9 Rule 37 unjust. Although the declaration from plaintiffs’ counsel does not clearly connect 10 plaintiffs’ delayed discovery responses to COVID-19 or the current pandemic, the record shows 11 that plaintiffs have been disrupted by an eviction, are in a financially precarious situation, and 12 have been working since March to establish a new permanent home. The court declines to award 13 defendant its expenses under these circumstances. 14 Although monetary sanctions are not being imposed at this time, the court strongly 15 cautions plaintiffs against further discovery delays. While relocating to a new residence may be 16 disruptive and inconvenient, plaintiffs are the ones choosing to maintain this lawsuit, and they 17 have an obligation to participate in the discovery process in a timely and good faith manner. If 18 plaintiffs fail to do so, the court may find that more serious sanctions are appropriate, including 19 the dismissal of plaintiffs’ lawsuit. 20 III. CONCLUSION 21 Accordingly, for the foregoing reasons, IT IS ORDERED that: 22 1. Defendant’s motion to compel (ECF No. 24) is GRANTED in part, as follows: 23 a. Plaintiffs are ordered to serve the supplemental discovery responses, 24 verifications, and medical and financial authorizations, as set forth in 25 defendant’s motion to compel, no later than August 21, 2020; and 26 ///// 27 ///// 28 ///// MAIS 2 LD UV VAM ESTING IVINS INES Oo POI re PY VY VI 1 b. Defendant’s request for an award of monetary sanctions is DENIED; 2 however, plaintiffs are cautioned that further discovery delays may result in 3 the imposition of more serious sanctions, including terminating sanctions. 4 | Dated: July 29, 2020 ft A Lad fue. © 9 CAROLYN K. DELANEY 6 UNITED STATES MAGISTRATE JUDGE 7 8 || 17.1024.mtc 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28