United States District Court, S.D. West Virginia, Charleston Division
A. EIFERT UNITED STATES MAGISTRATE JUDGE.
Wednesday, September 4, 2019, the court conducted a telephone
conference related to the defendants' efforts to depose
Patricia Ganja, PA-C, a treating health care provider of
Plaintiff. Participating in the conference were Jody Chance,
Esquire, counsel for Plaintiff; Anita Modak Truran, Esquire,
counsel for Defendants, and Mitchell Stipp, personal counsel
for Ms. Ganja. Because the conference was an informal attempt
to resolve a discovery dispute, the court did not require Mr.
Stipp to be admitted to the court prior to participating in
the conference. At the outset of the conference, the court
addressed Mr. Stipp's objection to the jurisdiction of
this court. Mr. Stipp asserts that this court lacks
jurisdiction to resolve a dispute involving his client's
pretrial deposition, as the prospective deponent, Ms. Ganja,
lives and works in Nevada and is subject to subpoena in that
jurisdiction, but not in the Southern District of West
jurisdiction of this court to resolve a pretrial dispute is
conferred by 28 U.S.C. § 1407, which provides that in
multidistrict litigation (“MDL”)-such as the
instant case, which is part of the Ethicon MDL pending in
this court-“[t]he judge or judges to whom such actions
are assigned … may exercise the powers of a district
judge in any district for pretrial proceedings.” 28
U.S.C. § 1407(b). For a variety of reasons, courts in
multiple jurisdictions, both before and after amendments to
Fed.R.Civ.P. 45, have agreed that the court presiding over an
MDL has the authority to resolve matters involving pretrial
depositions, regardless of the location of the deposition.
See, e.g., In re EpiPen, No. 17-md-2785-DDC-TJJ,
2018 WL 2926581, at *3 (D. Kan. June 11, 2018); In Re
Disposable Contact Lens Antitrust Litigation, 306
F.Supp.3d 372, 377-78 (D.D.C. 2017); In re Bank of New
York Mellon Corp. Forex Transactions Litig., No. 11 CIV
9175 LAK JLC, 2014 WL 2884726, at *1 (S.D.N.Y. June 26,
2014); In re New England Compounding Pharmacy, Inc. Prod.
Liab. Litig., No. MDL 13-2419-FDS, 2013 WL 6058483, at
*3 (D. Mass. Nov. 13, 2013); In re Neurontin Mktg., Sales
Practices, & Prod. Liab. Litig., 245 F.R.D. 55, 57
(D. Mass. 2007); United States ex rel. Pogue v. Diabetes
Treatment Centers of Am., Inc., 444 F.3d 462, 468-469
(6th Cir. 2006); In re Accutane Prod. Liab. Litig.,
No. 804MD2523T30TBM, 2006 WL 1000311, at *2, n. 3 (M.D. Fla.
Apr. 14, 2006); In re San Juan Dupont Plaza Hotel Fire
Litig., 117 F.R.D. 30, 32 (D.P.R. 1987); In re
‘Agent Orange' Prod. Liability Litigation, 597
F.Supp. 740, 751-52 (E.D.N.Y. 1984). Without such authority
vesting in the MDL court, the fundamental goals of
consistency and efficiency in multidistrict litigation could
not be achieved. Therefore, this court finds that it has
jurisdiction over pretrial disputes in this MDL, including
the current matter.
the court considered the dispute itself. The materials
provided by counsel demonstrate several important points.
First, Ms. Ganja is a treating health care provider and,
therefore, has relevant information in this MDL, because the
plaintiff alleges bodily injuries related to the insertion of
pelvic mesh, making her medical history, complaints,
diagnoses, and treatment significant evidence. Second,
Plaintiff has no objection to the deposition. Third, the
deposition was noticed on July 10, to take place on July 22,
which was prior to the August 1, 2019 discovery deadline.
Fourth, this date was selected only after the defendants
unsuccessfully attempted to obtain a convenient date for the
deposition from Ms. Ganja. Fifth, Ms. Ganja's personal
counsel was assured by the defendants that Ms. Ganja was not
a party to the case and was only being deposed as a treating
health care provider. The defendants also offered to conduct
the deposition before or after Ms. Ganja's clinic hours,
explaining that the deposition would last approximately 1
½ hours. Furthermore, the defendants were willingly to
schedule the testimony at a location that would accommodate
Ms. Ganja's needs. Despite the defendants'
willingness to work with Ms. Ganja to make the deposition as
convenient as possible for her, the deposition still has not
Ms. Ganja's stated reasons for refusing to sit for
deposition is that the deposition was rescheduled to a date
after the close of discovery. To remedy Ms. Ganja's
concerns over the discovery deadline, the court
EXTENDS the discovery deadline as it relates
to Ms. Ganja's deposition only. The parties are hereby
granted leave of court to depose Ms. Ganja beyond the
deadline for completing depositions and discovery.
Clerk is instructed to provide a copy of this Order to
counsel of record and to Mitchell Stipp, personal counsel for
Ms. Ganja, at 1180 N. Town ...