Plumlee v. Pfizer, Inc, No. 5:2013cv00414 - Document 197 (N.D. Cal. 2014)
Court Description: ORDER GRANTING-IN-PART DEFENDANT PFIZER'S MOTION TO COMPEL AND DENYING PLAINTIFF PLUMLEE'S MOTION FOR IN CAMERA REVIEW by Magistrate Judge Paul Singh Grewal granting-in-part and denying-in-part 153 , denying 174 . (psglc1S, COURT STAFF) (Filed on 8/29/2014)
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Plumlee v. Pfizer, Inc Doc. 197 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 LAURA A. PLUMLEE, Plaintiff, 12 v. 13 14 PFIZER, INC., Defendant. 15 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No. 5:13-cv-0414-LHK-PSG ORDER GRANTING-IN-PART DEENDANT PFIZER’S MOTION TO COMPEL AND DENYING PLAINTIFF PLUMLEE’S MOTION FOR IN CAMERA REVIEW (Re: Docket Nos. 153, 174) Before the court in this putative consumer class action is Defendant Pfizer, Inc.’s motion to compel further production of documents and responses to interrogatories.1 Plaintiff Laura A. Plumlee opposes,2 and requests in camera review for the documents at issue.3 Pfizer opposes 19 20 Plumlee’s request for in camera review.4 The parties appeared for a hearing.5 After careful 21 consideration, the court GRANTS Pfizer’s motion, but only IN-PART as set out below. The court 22 DENIES Plumlee’s motion for in camera review. 23 1 See Docket No. 153-3. 2 See Docket No. 163-3. 3 See Docket No. 174. 4 See Docket No. 181-4. 5 See Docket No. 188. 24 25 26 27 28 1 Case No. 5:13-cv-0414-LHK-PSG ORDER GRANTING-IN-PART PFIZER’S MOTIONS TO COMPEL Dockets.Justia.com I. 1 BACKGROUND In an order dated December 20, 2013, the court ordered Plumlee to produce medical records 2 3 and interrogatory responses for the period of “the time she was taking Zoloft and the two years 4 prior to her first Zoloft purchase.”6 The court based its ruling on Plumlee’s multiple challenges in 5 6 7 8 9 her complaint to Zoloft’s efficacy during that period, and explained that it would entertain another motion for an earlier period “if Pfizer can establish that additional discovery is warranted based on particular facts.”7 As ordered, Plumlee provided Pfizer with medical records from 2003 to 2005, two years before she began taking Zoloft, and from 2005 to June 2008, the period during which United States District Court For the Northern District of California 10 Plumlee took Zoloft.8 Citing evidence in the production to date raising questions about Plumlee’s 11 adequacy to represent a class under Federal Rule of Civil Procedure 23(a) and its impact on 12 Pfizer’s right to due process, Pfizer now wants Plumlee to update her discovery responses to 13 include the period since 2008—an additional six years.9 14 The specific interrogatories at issue are: 15 1. 16 17 18 Interrogatory No. 1: Identify all health care providers or other persons, including but not limited to physicians, nurses, therapists, counselors, social service workers, alternative medicine providers, and any others, who examined you, treated you, consulted you, or otherwise discussed depression, mental health issues or SSRIs with you at any time during your life, and list the dates each such provider performed such services. 19 20 21 22 6 See Docket No. 88 at 3. On February 21, 2014, Judge Koh affirmed the order. See Docket No. 106 at 7, 9 (ruling the records were relevant to the timeliness of this action and the reasons Plumlee took Zoloft, and “narrowly tailored to encompass only Plaintiff’s medical records and information regarding either her experiences with Zoloft or related mental health conditions that might bear on such experiences.”). 23 7 24 8 25 26 27 28 See Docket No. 88 at 3. See Docket No. 88 (requiring plaintiff to identify all of her medical providers and produce their records for “the time she was taking Zoloft and the two years prior to her first Zoloft purchase.”); see also Docket No. 163-3 at 3. 9 See Docket No. 153-3 at 4. See also Hansberry v. Lee, 311 U.S. 32, 43 (1940) (ensuring the adequacy of the class representative is necessary to “satisfy the requirements of due process and full faith and credit.”); Crawford v. Honig, 37 F. 3d 485, 487 (9th Cir. 1994); Matsushita Elec. Indus. Co., Ltd. V. Epstein, 516 U.S. 367, 386 (1996). 2 Case No. 5:13-cv-0414-LHK-PSG ORDER GRANTING-IN-PART PFIZER’S MOTIONS TO COMPEL 1 2. Interrogatory No. 2: List all treatments, medications, and other forms of therapy, that you have used to treat your depression or mental health issues including the dates each was performed, consumed, or attended. 3. Interrogatory No. 3: List all medical conditions or mental health issues that you have had for the past 20 years. 2 3 4 Pfizer also wants an update as to the following eight document requests: 5 1. Request No. 3: All health care provider records for Plaintiff for the past 20 years, including but not limited to, records and results, from medical or psychological tests Plaintiff has undergone relating to her depression or any related condition (including but not limited to major depressive disorder, obsessive-compulsive disorder, panic disorder, posttraumatic stress disorder, social anxiety disorder, or premenstrual dysphoric disorder). 2. Request No. 6: All documents or records reflecting Plaintiff’s purchase of Zoloft or any other antidepressant, including but not limited to receipts, and any documents provided to her with the prescription. 3. Request No. 7: All prescriptions Plaintiff has ever received for any antidepressant, including but not limited to Zoloft. 4. Request No. 8: All documents related to Plaintiff’s purchase of non-prescription substances meant to treat her depression, mental health issues or related disorders condition (including but not limited to major depressive disorder, obsessivecompulsive disorder, panic disorder, posttraumatic stress disorder, social anxiety disorder, or premenstrual dysphoric disorder). 5. Request No. 9: All documents evidencing Plaintiff’s regimen and frequency of taking Zoloft or any other antidepressant for the past 20 years. 6. 6 Request No. 16: Documents sufficient to identify all of Plaintiff’s health care providers, including but not limited to, physicians, nurses, therapists, counselors, social service workers, alternative medicine providers, and any others who have provided services related to any medical or psychological condition or mental health issue, for the past 20 years. 7. Request No. 17: Documents sufficient to identify all non-MD personnel who have treated or counseled Plaintiff for mental health issues, depression or related conditions, including but not limited to major depressive disorder, obsessivecompulsive disorder, panic disorder, posttraumatic stress disorder, social anxiety disorder, or premenstrual dysphoric disorder for the past 20 years. 8. Request No. 18: Documents sufficient to identify every prescription medication or non-prescription medication or other controlled substance, whether legal or illegal, or supplement that Plaintiff has taken for the past 20 years. 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No. 5:13-cv-0414-LHK-PSG ORDER GRANTING-IN-PART PFIZER’S MOTIONS TO COMPEL II. 1 LEGAL STANDARDS AND DISCUSSION “Unless otherwise limited by court order,” a party “may obtain discovery regarding any 2 3 nonprivileged matter that is relevant to any party’s claim or defense.”10 All discovery, however, 4 “is subject to the limitations imposed by Rule 26(b)(2)(C).”11 These limitations include no 5 unreasonably cumulative discovery, no discovery that can be obtained in a less burdensome 6 manner, and no discovery where the burden outweighs its benefit.12 The “information sought” also 7 must constitute “sufficient potential significance” justifying the burden of the discovery process.13 8 The class representative adequacy requirement is not demanding,14 although the court needs 9 United States District Court For the Northern District of California 10 to conduct a “rigorous analysis” to determine adequacy.15 The standard applied for adequacy in the 11 Ninth Circuit is: “(1) do the named plaintiffs and their counsel have any conflicts of interest with 12 other class members and (2) will the named plaintiffs and their counsel prosecute the action 13 vigorously on behalf of the class?”16 The class representative is considered the fiduciary to the 14 entire class.17 The class representative’s duties include supervising counsel, controlling and 15 16 17 10 18 19 Fed. R. Civ. P. 26(b)(1); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (discovery encompasses “any matter that bears on or that reasonably could lead to another matter that could bear on, any issue that is or may be in the case”). 11 Id. 12 See Fed. R. Civ. P. 26(b)(2)(C)(i-ii). 13 In re Convergent Tech. Sec. Litig., 108 F.R.D. 328, 331 (N.D. Cal. 1985). 20 21 22 14 23 24 25 See Moeller v. Taco Bell Corp., 220 F.R.D. 604, 611 (N.D. Cal. 2004), amended in part on other grounds, 2012 WL 3070863 (N.D. Cal. July 26, 2012) (“The threshold of knowledge required to qualify as a class representative is low . . . . Those courts that have found representatives inadequate have done so because the plaintiffs knew nothing about the case and completely relied on counsel to direct the litigation.”). 15 See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). 16 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011) (citation omitted). 17 See 5 Moore’s Fed. Practice, § 23.25[2][a] (3d ed. 2014). 26 27 28 4 Case No. 5:13-cv-0414-LHK-PSG ORDER GRANTING-IN-PART PFIZER’S MOTIONS TO COMPEL 1 2 directing prosecution of the action, and evaluating settlement opportunities.18 Ultimately a class representative’s adequacy is a question under the court’s discretion.19 Ordinarily, mental health history is not relevant to a putative class representative’s 3 4 adequacy.20 But certain cases present circumstances warranting some limited and narrowly 5 tailored discovery on the subject.21 This appears to be just such a case. The discovery produced 6 7 8 9 United States District Court For the Northern District of California 10 thus far suggests Plumlee suffers from chronic mental health conditions that may persist to the present day and that could impair her in adequately representing the class’ interests.22 Because Judge Koh needs to know whether Plumlee’s condition has stayed the same, further deteriorated, or improved, so that a fair assessment can be made of Plumlee’s ability to represent a class, the 11 12 18 13 14 15 See Docket No. 153-3 at 9. See Charles A Wright, Arthur R . Miller & Mary Kay Kane, Federal Practice and Procedure §1766 (2d ed. 1986) (discussing representatives’ duties generally); Welling v. Alexy, 155 F.R.D. 654, 659 (N.D. Cal. 1994) (class representative must supervise counsel); In re Cal. Micro Devices Sec. Litig., 168 F.R.D. 257, 268 (N.D. Cal. 1996) (class representative must monitor settlement negotiations. 19 16 See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 20 17 18 19 20 21 See Docket No. 163-3 at 9-10, 14; Ingles v. City of New York, Case No. 01-cv-8279-DC, 2003WL 402565, at *1, *7 (S.D.N.Y. 2003) (ruling that class representative who was currently on psychiatric medication and had a “psychiatric condition” was an adequate class representative); Hill v. Priority Fin. Servs., Inc., Case No. 98-cv-1319-SEB, 2000 WL 1876582, at *1 (S.D. Ind. 2000) (noting that even if the class representative were “currently undergoing treatment for mental illness,” that would not disqualify him if it did not “affect his understanding of the case, his processing of information, or his ability to perform his duties as class representative”); Casale v. Kelly, 257 F.R.D. 396, 412 (S.D.N.Y. 2009) (rebuking as disrespectful an argument of inadequacy where class representative suffered from depression and paranoia). 21 22 23 24 25 26 27 See, e.g. Hill, 2000 WL 1876582, at *1; Advance Am. Servicing of Ark., Inc. v. McGinnis, 2009 Ark. 151, at *10 (Ark. 2009) (rejecting challenge to adequacy in part because “no medical reports were introduced indicating that [Plaintiff] may not be able to vigorously participate in the prosecution of a class action”); Latona v. Carson Pirie Scott & Co., No. 96-2119, 1997 WL 109979 (N.D. Ill., Mar. 7, 1997); Roundtree v. Cincinnati Bell, Inc., 90 F.R.D. 7 (S.D. Ohio 1979); In re American Medical Systems, Inc., 75 F.3d 1069, 1086 (6th Cir. 1996); Silberblatt v. Morgan Stanley, 524 F. Supp. 2d 425, 435 (S.D.N.Y. 2007) (absent class members are entitled to repose trust and confidence in a class representative); Krim v. pcOrder.com, Inc., 210 F.R.D. 58, 589 (W.D. Tex. 2002) (representative deemed inadequate because he was “an elderly gentleman battling illness,” and could not “endure intense situations such as depositions for several hours in a row, and does not anticipate his health situation will significantly improve.” 22 28 See Docket No. 153-4, 5-7, 9-11, 12-17, I-M. 5 Case No. 5:13-cv-0414-LHK-PSG ORDER GRANTING-IN-PART PFIZER’S MOTIONS TO COMPEL 1 burden of this production does not outweigh its benefit.23 While Plumlee’s medical history is 2 privileged information, at the time she filed her complaint, she publicized various aspects of her 3 medical history.24 Any doubts that Plumlee thus waived her claims of privilege were resolved by 4 Judge Koh.25 5 6 All that said, the court still must answer the question of how much discovery is appropriate on the issue in dispute. Six more years worth of answers is plainly too much. If the issue is 7 8 9 Plumlee’s current capacity to serve, what counts are her current—or near current—records, not those from over a half a decade ago. Only the past six months of Plumlee’s records and United States District Court For the Northern District of California 10 interrogatory response related to Plumlee’s mental health are necessary to evaluate Plumlee’s 11 present adequacy as a putative class representative. Pfizer also may depose Plumlee to determine 12 her ability to participate in and understand the fundamentals of the litigation,26 and may further 13 conduct a medical examination pursuant to Federal Rule of Civil Procedure 35.27 14 15 16 17 23 18 19 20 21 22 23 24 25 Fed. R. Civ. P. 26(b)(2)(c); see Docket No. 163-3 at 2, 11-12. See e.g. Johnson v. Nyack Hosp., 169 F.R.D. 550, 562 (S.D.N.Y. 1996) (noting the court’s power to limit discovery “may be employed where the burden is not measured in the time or expense required to respond to requested discovery, but lies instead in the adverse consequences of the disclosure of sensitive, albeit unprivileged, material”); Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065 (9th Cir. 2004) (extending “burden” to the public interest). 24 Docket No. 166-3 at 1, (“she willingly let the horse out of the barn when she filed this lawsuit, garnering as much publicity as she could with a press release and Associated Press interview that was widely reported, including in U.S.A Today, where she talked freely about her life-long history of depression, criticism of Zoloft, and the breakdown that led to her hospitalization. She also filed a public complaint under her real name . . .” Further, she “has taken no steps to protect the confidentiality of her information in this litigation.”). See also Docket No. 106 (“the Court holds that Plaintiff has waived her privilege in the medical records and information requested by Defendant.”). 25 See Docket No. 106. 26 See Docket No. 163-3 at 11, 14; see Moeller, 220 F.R.D. at 611. 27 Fed. R. Civ. P. 35. 26 27 28 6 Case No. 5:13-cv-0414-LHK-PSG ORDER GRANTING-IN-PART PFIZER’S MOTIONS TO COMPEL
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