Deliberate Discovery Responses Shifts Onus Onto Opponent

Federal Rule of Civil Procedure 60(b)(2) grants relief from a final judgment on the basis of “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).”  Fed. R. Civ. P. 60(b)(2).  Under Rule 60(b)(3), a party is relieved from judgment on the basis of “fraud, misrepresentation, or misconduct by an opposing party.”  Fed. R. Civ. P. 60(b)(3).  To succeed under Rule 60(b)(3), an appellant (1) has the burden of proving fraud or other misconduct by clear and convincing evidence; and (2) must show that such misconduct prevented him from fully and fairly presenting his case.  In Lyles v. Medtronic Sofamor Danek, USA, Inc., 871 F.3d 305, 315 (5th Cir. 2017), the Fifth Circuit found that a plaintiff who failed to pursue discovery of withheld documents did not meet either threshold that would entitle him to relief from summary judgment in favor of defendant manufacturer.  Lyles is an example of the benefits from keeping discovery responses specific and narrow, thus putting the onus on your adversary to follow up as cases develop.

By way of background, in Lyles, appellant Lyles was admitted to LSU Health Sciences Center Shreveport (“LSUHSC”) to undergo anterior corpectomy and discectomy surgery.  A Verte-Stack implant, a vertebral body replacement device, was placed in his spine, along with Progenix, a bone graft material.  Additionally, an “Atlantis Plate” was also implanted to stabilize the Verte-Stack.  Lyles, 871 F.3d at 308.  All three devices were manufactured by Medtronic Sofamor Danek, USA (“MSD”).  A fourth device known as “infuse” was also used.  Following the surgery, the Atlantis Plate either broke or became displaced.  Id.

Lyles initially sued MSD in Louisiana state court under the Louisiana Products Liability Act for the Atlantis Plate and another bone graft device, but not the Verte-Stack or Progenix.  The case was removed to federal court and the District Court for the Western District of Louisiana granted summary judgment in favor of MSD. Lyles moved for relief from this judgment pursuant to Federal Rule of Civil Procedure 60(2) and (3) based on allegedly newly discovered evidence, claiming that MSD failed to respond properly to discovery requests. The District Court denied the motion.  The Fifth Circuit affirmed both the grant of summary judgment and the denial of the Rule 60 motion, finding that the District Court did not abuse its discretion and Lyles had failed to show that he exercised “due diligence in obtaining information from the manufacturer” as is required to support a motion for relief from judgment on the basis of newly discovered evidence.

The Fifth Circuit articulated a two-part test that an appellant must satisfy to succeed on a motion for relief from judgment based on newly discovered evidence.  A movant must show: “(1) that it exercised due diligence in obtaining the information; and (2) that the evidence is material and controlling and clearly would have produced a different result if present before the original judgment.”  Lyles, 871 F.3d at 316 (internal citation omitted).  On appeal, the Court reviews a District Court’s decision for abuse of discretion.

During discovery, plaintiff requested “all information” retained by the defendant manufacturer concerning the medical devices implanted in Lyles’ spine.  On appeal, Lyles argued that documents regarding the Verte-Stack and Progenix devices should have been produced, but instead MSD’s response dealt only with infuse and the Atlantic Plate.  Additionally, in response to Lyles’ request that MDS “identify any and all devices or products manufactured or sold by Medtronic which were used on Bryant Lyles at any time,” MSD directed Lyles to the hospital records from the hospital where the surgery was performed.  Id.  Lyles argued on appeal that documents he later found through his counsel showed that the Verte-Stack should not have been used in the cervical spine or with the Atlantis Plate, and further, that MSD was aware of these potential problems.  Id.  Apparently an unknown caller provided Lyles’ counsel with a manual for the Verte-Stack revealing that the device is allegedly contraindicated for use in the cervical spine, contraindicated for use with the Atlantis Plate and not designed for use with Progenix, among other biologics.  Lyles v. Medtronic, Inc., No. CV 15-0910, 2016 WL 4540870, at *8 (W.D. La. Aug. 31, 2016).

Critical to both the lower and appellate court analyses was that Lyles “knew that both the Verte-Stack and Progenix were used in his surgery prior to the grant of summary judgment.”  Id. at 316. Indeed, Lyle’s expert testified in his deposition that these two devices were used in Lyles’ surgery.  Id.  Additionally, the record “demonstrates that Lyles did not attempt to pursue the discovery of documents dealing with Verte-Stack or Progenix prior to judgment being entered against him.”  Id.

Importantly, the District Court found that “[a]lthough the [R]equest [for Production No. 5] was broadly worded, it was not unreasonable for counsel [for MSD] to interpret the request as limited to the two products about which the parties were in dispute,” (the Verte-Stack and Progenix were not at issue at the time MSD answered the discovery requests). Id. at 317.  Additionally, the District Court found that Lyles had  “failed to present the Court with evidence that MSD or its counsel engaged in any misconduct at all” and that he had “done no more than speculate that MSD and its counsel were aware of issues with Verte-Stack and Progenix and, therefore, intentionally failed to disclose information about those products.”  Id.

Lyles raises the question of how specific and narrow a discovery response should be in the face of overly broad requests for production.  The District Court and the Fifth Circuit agreed with MSD that because Lyles was aware that Verte-Stack and Progenix were used in his surgery any lack of discovery was a result of his own creation: he never took any steps to object to MSD’s failure to provide documentation or other information and he did not move to compel production of documents.  For this reason, the evidence Lyles pointed to did not qualify as “newly discovered.”  Lyles, No. CV 15-0910, 2016 WL 4540870, at *9 (explaining “at no time did Lyles indicate that he was attempting to pursue an LPLA claim based on the use of Verte-Stack and/or Progenix.”).  Furthermore, the District Court pointed out that “Lyles did not make any further inquiry through counsel as to why MSD failed to produce documentation or make an objection to the production of such evidence, nor did he file a motion to compel. Under these facts and circumstances where Lyles and his counsel knew about the products, knew they were used in his surgery, and knew they were manufactured by MSD or Medtronic, the Court finds that Lyles did not exercise due diligence to obtain discovery of the very facts that he easily obtained after the anonymous call.”

Ultimately, the Fifth Circuit agreed with the District Court’s approach to examine the procedural history of the case and determine that it was reasonable for MSD to tailor its discovery responses to only the two products at issue by the time the requests were answered: Atlantis Plate and infuse, not Verte-Stack or Progenix.  Interestingly, the Fifth Circuit did not make any suggestion that the defense had an obligation to amend or supplement its production.

In sum, Lyles stands for two important propositions, at least in the Fifth Circuit: (1) motions for relief from judgment under Rules 60(b)(2) and 60(b)(3) are “extraordinary” and require high evidentiary burdens be strictly met; and (2) narrowly tailored discovery responses – even those that require the opposition to engage in significant due diligence – are an effective (and possibly outcome determinative) litigation strategy.  It is also a good reminder that you should rarely, if ever, say more than you need to in responding to discovery.