ST. LOUIS – An Eastern District of Missouri judge ordered a pharmaceutical company to produce documents.
Judge Audrey G. Fleissig has ruled defendant Mallinckrodt LLC has in fact delayed necessary discovery from plaintiffs Scott D. McClurg, et al. and is mandating it bring forth the evidence regarding an expert witness no later than 14 days, according to a June 20 order.
The case background details McClurg’s motion for documents from Site Research Database (SRDB), alleging Mallinckrodt has kept the documents since 2016 that should have been released before disclosing their expert witness.
“Plaintiffs argue that they have attempted, unsuccessfully, to obtain the SRDB Documents through their own (Freedom of Information Act) requests and other means, and that they believe that ‘Mallinckrodt may have had preferential access to these documents,’” Fleissig wrote.
McClurg also alleges that along with the SRDB documents, Mallinckrodt is also withholding “presentations that Mallinckrodt’s testifying experts prepared, or that other non-attorney staff prepared that were considered by Mallinckrodt’s testifying experts, as well as communications between the testifying experts and non-attorney staff or consultants,” according to the order.
But Mallinckrodt disagrees.
“Mallinckrodt argues that neither it nor its experts had any special access to the SRDB Documents, and, instead, its counsel obtained these documents through ‘exhaustive research and thorough searches of National Archives or through Freedom FOIA requests,’ just as plaintiffs have tried to do,” according to the order, adding McClurg should not be privy to its presentation since “internal communications because such information is protected under the work product doctrine.”
Beginning the case discussion, Fleissig notes precedent for discovery.
“As for expert witnesses, Rule 26(a) provides that parties must reveal the identity of expert witnesses as part of their mandatory disclosures, and retained experts are required to submit reports which must include 'the facts or data considered by' the experts in forming their opinions,” Fleissig wrote.
However, Rule 26 does not fully apply to McClurg’s request for certain SRDB discovery, according to the judge, who explains that “the court is persuaded that this issue could have been resolved earlier if plaintiffs adequately met and conferred on the issue,” according to the order, adding, “it appears that plaintiffs were perhaps in a position to raise this issue at the last status conference.”
Furthermore, Fleissig denied McClurg’s motion for sanctions.
“The court concludes that, pursuant to the Federal Rules of Civil Procedure and the Court’s prior orders discussed above, Mallinckrodt was not required to produce the SRDB Documents until Mallinckrodt determined that it may use the documents to support its defenses, in connection with a supplementation of its initial disclosures and discovery responses under Rule 26,” Fleissig wrote.
But the judge did deem differently on Mallinckrodt’s presentation and notes.
“There is no evidence here that the notes, memoranda, presentations, and communications with non-attorneys sought by Plaintiffs constitute protected draft reports or attorney-expert communications,” Fleissig wrote in the order. “Thus, Mallinckrodt must promptly produce the documents. However, Mallinckrodt may redact any attorney opinion work product, subject to providing an appropriate privilege log.”
The judge gave Mallinckrodt 14 days from June 20 to produce said documents and McClurg 21 days to complete the depositions with Mallinckrodt's expert witness.