572 F.Supp.3d 319
E.D. Ky.2021Background
- Thacker sued Ethicon alleging injury from Ethicon’s pelvic mesh (claims include failure to warn, strict liability, negligence, breach of warranties, fraud, loss of consortium, and punitive damages).
- Case was consolidated into the pelvic-mesh MDL in the Southern District of West Virginia for pretrial discovery.
- Thacker disclosed Dr. Bruce Rosenzweig as an expert; disclosures and his deposition stated his rates ($750/hr document review; $1,500/hr deposition), production of invoices, and that he has received roughly $8 million representing plaintiffs in pelvic-mesh litigation.
- Ethicon sought broader compensation-related records (total amounts billed/paid by all plaintiffs, expected future fees, invoices/time records or 1099s for pelvic-mesh cases in last five years, and the retaining law firm).
- Ethicon served a subpoena duces tecum on Dr. Rosenzweig and attached a similar subpoena to the deposition notice in this case; Ethicon moved to compel this Court to order production.
- The Court denied the motion: it found Rule 26 expert-disclosure obligations satisfied, rejected using a deposition notice to sidestep Rule 45, and held it lacked jurisdiction to enforce the nonparty subpoena because compliance is required in the Northern District of Illinois (where Dr. Rosenzweig resides).
Issues
| Issue | Thacker's Argument | Ethicon's Argument | Held |
|---|---|---|---|
| Whether Thacker must supplement Rule 26 disclosures to provide detailed, multi-case compensation records of Dr. Rosenzweig | Disclosed required Rule 26 information (statement of compensation); additional multi-case financials exceed Rule 26 scope | Requested details are relevant to show expert bias and must be produced | Denied—Rule 26 disclosures satisfied; the subpoenaed details exceed Rule 26 requirements |
| Whether attaching a subpoena to a deposition notice gives this Court authority to compel a nonparty's documents | Attachment does not convert a Rule 45 subpoena into discovery enforceable in this district | Attaching the subpoena to the deposition notice makes the request enforceable in this case | Rejected—the Court will not permit circumvention of Rule 45; locational/enforcement rules control |
| Whether this Court can enforce a Rule 45 subpoena commanding production in another district | No, motions to compel compliance must be filed in the district where compliance is required | The Court should enforce the subpoena attached to the deposition notice here | Denied—the Court lacks jurisdiction to compel production; Ethicon must move in the district of compliance (N.D. Ill.) |
| Proper forum for compelling Dr. Rosenzweig to produce the requested documents | N/A (Thacker points to proper Rule 26 compliance) | Relief should be ordered in this case | Held—Ethicon must seek relief in the Northern District of Illinois where Dr. Rosenzweig resides and where compliance is required |
Key Cases Cited
- Europlay Capital Advisors, LLC v. Does, 323 F.R.D. 628 (C.D. Cal. 2018) (motions to compel Rule 45 subpoenas must be made in the court where compliance is required)