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In re Smith & Nephew Birmingham Hip Resurfacing BHR Hip Implant Products Liability Litigation

United States District Court, D. Maryland

June 20, 2018

IN RE SMITH & NEPHEW BIRMINGHAM HIP RESURFACING BHR HIP IMPLANT PRODUCTS LIABILITY LITIGATION

          MEMORANDUM

          Catherine C. Blake, United States District Judge.

         Smith & Nephew has moved for a protective order to limit the scope of discovery. (ECF No. 707). A hearing on the motion was held on June 12, 2018. For the reasons stated below, Smith & Nephew's motion will be denied in part and granted in part.

         I.

         Smith & Nephew has challenged several categories of the plaintiffs' discovery requests as either irrelevant, because they relate only to dismissed claims, or overbroad, because they request large sets of discovery only some of which is relevant. Smith & Nephew also challenges the plaintiffs' use of Rule 30(b)(6) to discover the identity of certain persons as unduly burdensome. For the reasons stated below, Smith & Nephew's motion will be denied in part and granted in part.

         A.

         Smith & Nephew's motion, indeed the core of the parties' dispute, raises this question: whether the sentence "The plaintiffs argue that Smith & Nephew is liable under their remaining state law theories—negligence and negligence per se, failure to warn, negligent misrepresentation, breach of express warranty, and manufacturing defect—because it failed to report adverse incidents and properly train surgeons, disseminated false information, and manufactured the BHR with defects" provides an exhaustive list of non-preempted arguments the plaintiffs may use to support their claims. The answer: it does not.[1]

         The sentence Smith & Nephew relies on, stripped of its context, might be read as an exhaustive list of the plaintiffs' surviving claims and arguments. But a single sentence is not to be read in isolation. The sentence's context and purpose must be considered to understand its meaning.

         First, the sentence is located in an umbrella paragraph of a section analyzing whether the plaintiffs' claims are expressly preempted. That paragraph serves, as any umbrella paragraph does, as a brief overview of the reasoning and conclusions to come. The disputed sentence simply summarized what the court saw as illustrative of the plaintiffs' claims; it was not intended to be an exhaustive list..

         Second, on other pages the court makes clear that the opinion's purpose was to "draw boundaries, excluding claims to the extent the plaintiffs are seeking liability on grounds other than a violation of federal regulations and including all others, to guide future argument and discovery." (Mem. Op. at 10) (emphasis added). Unless a claim or argument imposed a duty "not also imposed by the FDA" the plaintiffs were free to pursue that claim or argument through discovery and trial. (Id. at 17). And this principle, that all of the plaintiffs' claims that parallel federal requirements survive, was a frequent refrain throughout the opinion. (See, e.g., Mem. Op. at 18 ("Any claim that Smith & Nephew had a duty to warn the general public or the medical community is, however, expressly preempted because there is no such parallel federal requirement."); Id. ("But when a manufacturer makes other claims about its device as, for example, that it is safer than competing devices, it steps out of the protected zone of FDA-approved warranties and into its ongoing obligation to disseminate truthful and non-misleading information regarding the device.") (emphasis added); Id. at 19 ("A state law manufacturing defect claim relying on [deviations from FDA-approved specifications]. .. would not differ from or add to preexisting federal obligations."))

         It was never the court's intention to expressly identify each of the plaintiffs' surviving claims and arguments. It appears Smith & Nephew assumes that all claims and arguments not expressly identified as not preempted are preempted. But the court made clear that the opposite is . true—all claims and arguments not expressly identified as preempted are not preempted.

         At base, Smith & Nephew suggests that the court not only silently dismissed several of the plaintiffs' claims, but silently dismissed claims that the opinion's reasoning clearly understood to survive express preemption. That is not correct. With this understanding in mind, here again is the court's prior holding:[2]

1. The plaintiffs' strict liability claims are preempted.
2. Any claim that Smith & Nephew had a duty to change its labeling or warn patients or the medical community is preempted.
3. Any claim that attempts to impose liability on Smith & Nephew simply for claiming the BHR was safe, or for any representation the FDA required Smith & ...

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