Opinion
Civil Action No. 1:04-CV-2869-ODE.
October 22, 2004
ORDER
This civil diversity action is before the court on Plaintiff's motion to compel and for sanctions and Defendants' motion to extend discovery. In the underlying actin, Plaintiff alleges that she was injured during surgery due to the malfunction of a medical suturing device designed and manufactured by Defendants. For the reasons set forth below, Plaintiff's motion to compel and for sanctions is DENIED and Defendants' motion to extend discovery is GRANTED.
Plaintiff seeks an order to compel discovery of information in three basic categories. First, Plaintiff seeks to compel Defendants to provide information about the specific device used during Plaintiff's surgery. Defendants argue that the principal impediment to discovery has been Defendants' confusion over which specific product Plaintiff was alleging had malfunctioned. As such, Defendants have not been able to respond to Plaintiff's discovery requests. However, Defendants' opposition brief (#4] to the instant motion also asserts that the confusion over the product's identification has been resolved and that Defendants have supplemented their responses to Plaintiff's requests.
Plaintiff has not replied or otherwise informed the court whither Defendants' supplemental responses were indeed adequate. Moreover, the instant motion to compel was filed and opposed in state court, and was still pending when Defendants removed the case to federal court. Possibly due to the transfer of this case's file from state court, the record is incomplete and insufficient to resolve Plaintiff's motion on this issue. The court does not have a copy of Defendants' faint answer to Plaintiff's original complaint. In addition, this court has not received a copy of Plaintiff's requests far production or a copy any of the attachments to Defendants' opposition [#4] to the instant motion. Judging from Defendants' brief, these attachments include Defendants' supplemental responses.
Without viewing the complete record, the court cannot determine the adequacy of Defendants' responses to Plaintiff's requests related to the specific device at issue. Because of the possibility that this dispute has been resolved, judicial economy supports denial of Plaintiff's motion. If Plaintiff remains unsatisfied with Defendants' supplemental responses, Plaintiff may file a new motion to compel after making reasonable efforts to resolve the dispute.
The second category of information sought by Plaintiff is information about other incidents where patients were injured by the device in question and concerning the record of this particular device, for instance information about the device's known defects, copies of any complaints Defendants have received about the device, atc. Defendants argue that much of this information is irrelevant because it involves incidents and defects disimilar to those alleged by plaintiff.
The confusion over which specific product was at issue in this case was not resolved prior to Plaintiff's motion to compel. Moreover, Defendants aver that in their supplemental response, they have agreed to provide Plaintiff with "information regarding incidents within the last five years in which it was claimed that an ECS device failed properly to cut or staple, causing personal injury, as appears to be the allegation in this case." [Defs.' Opp. to Mat. to Compel, at p. 13].
As with the information Plaintiff seeks regarding the specific device at issue, the court cannot determine the adequacy of Defendants' responses to Plaintiff's requests for information about other incidents in which the devices caused injury. It is again possibly that Defendants' supplemental response was sufficient and that this disputes has been mooted. Plaintiff's motion to compel production of this information is therefore DENIED at this time. If Plaintiff remains unsatisfied with Defendants' supplemental responses, Plaintiff may file a new motion to compel after making reasonable efforts to resolve the dispute.
Finally Plaintiff seeks to compel production of the factual support for various affirmative defenses Defendants propounded in their answer. To teach of these requests, Defendants state that they currently lack sufficient information about Plaintiff's claims to provide factual support for the defense. Defendants' response to each interrogatory states that Defendants asserted the affirmative defenses merely to avoid waiver and that they will supplement their responses to Plaintiff's requests as appropriate.
At this early stage of discovery, Defendants' response is entirely proper. Defendants have done nothing unusual by pleading a range of affirmative defenses in their answer to avoid waiver, even though the factual support for these defenses has not yet been (and may never be) established. Defendants cannot be compelled to support their defenses before even the most basic discovery has been completed.
Defendants have committed to supplement. their responses once they have adduced sufficient information to withdraw any defenses not supported by the facts. Accordingly, Plaintiff's motion to compel discovery regarding Defendants' affirmative defenses is DENIED.
The Court having read and considered Defendants' motion to extend discovery and noting the absence of any opposition, the motion to extend discovery through January 24, 2005 (#5) is hereby GRANTED.
In sum, Plaintiff's motion to compel and for sanctions [#3] is DENIED. With regard to the first two categories of information sought by Plaintiff, Plaintiff may file a new metro to compel if she is dissatisfied with Defendants' supplemental responses and she fails in reasonable efforts to resolve the dispute, If a new motion is filed, both parties are directed to re-submit all relevant attachments. Defendants are also DIRECTED to submit a copy of their original answer whether or not the motion to compel is renewed. Defendants' motion to extend discovery through January 25, 205 [#5] is GRANTED.
SO ORDERED.