Eisenberg v. Sorin Group Deutschland GMBH
4:16-cv-04175
D.S.D.Aug 2, 2017Background
- In June 2015 Duane Eisenberg received aortic valve replacement using a Sorin 3T Heater-Cooler (the 3T Device); he was later diagnosed with Mycobacterium chimaera and plaintiffs sued Sorin Group defendants alleging exposure during surgery.
- Defendants moved for entry of a protective order; the parties agreed on most terms but disputed the scope of disclosure to counsel in other cases (Paragraphs 2 and 3).
- Defendants sought a restrictive order limiting disclosure to this case and to other cases where plaintiffs' counsel (Cadwell Sanford Deibert & Garry LLP) is counsel of record.
- Plaintiffs sought a broader order allowing sharing of protected materials in other related actions involving alleged NTM infection/exposure by the 3T Device, provided receiving counsel in those actions execute an acknowledgment and a protective order is entered.
- The Court entered Plaintiffs’ proposed protective order on July 7, 2017, finding good cause under Rule 26(c) based on privacy interests, promotion of fairness and efficiency through coordinated discovery, and public-health importance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of permitted disclosure of Protected Materials | Allow sharing with counsel/parties in other related lawsuits involving the 3T device if receiving counsel executes an acknowledgment and protective order | Restrict disclosure to this case and to other cases only where plaintiffs’ counsel (Cadwell Sanford Deibert & Garry LLP) is counsel of record | Court adopted Plaintiffs’ proposed protective order permitting disclosure in Related Actions with safeguards (acknowledgment form and requirement of a protective order) |
| Whether protective order infringes Defendants’ privacy interests | Plaintiffs: limited sharing among litigants with written understandings protects privacy | Defendants: broader sharing risks public dissemination and misuse of confidential materials | Court found order sufficiently tailored to protect Defendants’ privacy (limited recipients; acknowledgment form) |
| Whether cross-case sharing promotes fairness/efficiency | Plaintiffs: sharing discovery among related suits reduces duplicative discovery and aids coordination | Defendants: risk of uncontrolled dissemination and unfair use in other proceedings | Court found sharing promotes fairness and efficiency, consistent with MDL panel observations about coordinated discovery among counsel |
| Public interest and health implications as a factor for protection | Plaintiffs: health implications justify coordinated, secure sharing among related litigations | Defendants: protective order should avoid broader dissemination despite public interest | Court considered public-health importance as weighing in favor of the tailored protective order |
Key Cases Cited
- Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204 (8th Cir.) (protective order requires showing of good cause)
- Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994) (factors and balancing test for issuing discovery protective orders)
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (Rule 26(c) grants courts broad discretion in crafting protective orders)