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Bartlett v. Mutual Pharmaceutical Co., Inc., Not Reported in F.Supp.2d, 2010 WL 2990824

Facts

The case arose when Bartlett accused Mutual Pharmaceutical of failing to produce a manuscript written by Dr. Stern, which was kept at the hospital where he worked. Despite Mutual's claims that the manuscript was insignificant, the court found that it was central to Bartlett's case, especially since it contained data relevant to the number of Sulindac prescriptions. This was not the first instance of Dr. Stern forgetting about the manuscript, as he had previously failed to recall it during a deposition in another case.

The very same document was brought to his attention during an April 2008 deposition in Lofton v. McNeil Consumer & Specialty Pharms., No. 05–cv–1531–L (N.D.Tex.), another case involving an NSAID that allegedly caused SJS/TEN.

Issue

Did Mutual Pharmaceutical provide a sufficient justification for failing to produce Dr. Stern's manuscript, and what are the implications of this failure on the case?

Did Mutual Pharmaceutical provide a sufficient justification for failing to produce Dr. Stern's manuscript, and what are the implications of this failure on the case?

Rule

Under Fed.R.Civ.P. 37(c)(1), a party must provide a satisfactory explanation for failing to produce relevant documents, and control over documents encompasses more than mere possession.

Control is a broad concept and encompasses more than mere possession. See, e.g., 7 Moore's Federal Practice § 34.14[2][b], at 34–73 (3d. ed.2010).

Analysis

The court analyzed Mutual's failure to produce the manuscript by considering the control Dr. Stern had over it, despite it being located at the hospital. The court noted that the manuscript's significance to the case was substantial, particularly as it contained data that could impact the trial. Mutual's argument that the failure to produce the manuscript was harmless was rejected, as the court recognized the potential disruption to trial preparation.

As for the significance of the manuscript, that is yet to be determined, and of course is not entirely for Mutual to say, which is why this court ordered supplemental depositions.

Conclusion

The court upheld its earlier ruling requiring Mutual to produce Dr. Stern's manuscript, emphasizing the importance of the document to Bartlett's case.

For all of these reasons, the court's earlier ruling (doc. 251) remains in effect.

Who won?

Bartlett prevailed in this case because the court found that Mutual failed to justify its non-production of the manuscript, which was deemed significant to the case.

But it is hard to learn the facts when a party fails to produce them.

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