In Re: Vena Cava Filter Lit., Appeal of: Rex Med. ( 2022 )

J-A03038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE OPTION VENA CAVA FILTER : IN THE SUPERIOR COURT OF
LITIGATION : PENNSYLVANIA
:
:
:
APPEAL OF: REX MEDICAL, L.P. : No. 2332 EDA 2020
Appeal from the Order Entered October 30, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 170501600
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 9, 2022
This is a mass tort litigation matter concerning the medical devices,
inferior vena cava filters, intended to prevent pulmonary embolisms.
Defendant Rex Medical, L.P. (Appellant) appeals from the discovery order,
entered on the “Master Docket,” in the Philadelphia Court of Common Pleas,
which in effect directed Appellant to provide certain financial information
related to the plaintiffs’ claims for punitive damages.1 The trial court suggests
the underlying order is not appealable, and specifically not an appealable
____________________________________________
1 See Pa.R.C.P. 4003.7 (“A party may obtain information concerning the
wealth of a defendant in a claim for punitive damages only upon order of court
setting forth appropriate restrictions as to the time of the discovery, the scope
of the discovery, and the dissemination of the material discovered.”).
As we discuss infra, the trial court’s October 30, 2020, order adopted
the August 1, 2020, recommendation and opinion of the discovery master,
and overruled Appellant’s objections thereto. We note no appellee’s brief has
been filed.
J-A03038-22
collateral order under Pa.R.A.P. 313.2 We agree, as we conclude that
Appellant, a limited partnership, does not enjoy the same privacy and policy
considerations as individuals who are directed to disclose personal financial
information. We thus quash this appeal.
Appellant is a Pennsylvania limited partnership, with its principal place
of business in Conshohocken, Pennsylvania.3 The trial court aptly summarized
the underlying facts and procedural history:
Inferior vena cava (IVC) filters are cone-shaped medical
devices implanted into the inferior vena cava to “catch” blood clots
as they travel from the lower portion of the body to the lungs and
heart; IVC filters were designed to prevent pulmonary emboli[.]
In June 2009, [Appellant] obtained § 510(k) clearance from the
FDA to market the Option filter as a permanent IVC filter, with the
option for removal. In December 2013, [Appellant] obtained
§ 510(k) clearance to market a second filter, the Option Elite filter.
[Appellant] sold the entire . . . product line to Defendant Argon
Medical L.P. [(Argon)] in 2015 for $160 million[.]
Trial Ct. Op., 7/15/21, at 2 (record citations omitted). Appellant and Argon
are the two named defendants in the amended long form complaint.
On May 11, 2017, the trial court
created the In re: Option™ Vena Cava Filter Litigation mass
tort program for the coordination of all cases in which a plaintiff
alleged . . . they suffered injuries as a result of the implementation
____________________________________________
2 See Pa.R.A.P. 313(b) (“A collateral order is an order separable from and
collateral to the main cause of action where the right involved is too important
to be denied review and the question presented is such that if review is
postponed until final judgment in the case, the claim will be irreparably lost.”).
3 Plaintiffs’ First Amended Master Long Form Complaint & Jury Demand,
11/17/17, at 2; Appellant’s Brief at 25.
-2-
J-A03038-22
of an Option™ Vena Cava Filter device. Pursuant to Case
Management Order 1, a “Master Docket,” May Term 2017 No.
1600, was created to serve as a depository for the filing of
pleadings, motions, orders and other documents common to all
cases; once a document or order has been filed on the Master
Docket, it could be incorporated by reference in any other properly
filed Motion or Pleading.
Case Management Order 3 required the filing of a Master
Long-Form Complaint which made allegations common to all
plaintiffs in the litigation; the filing of the Master Long-Form
Complaint superseded the pleadings in each individual case. Each
individual plaintiff was then required to file a case-specific short-
form complaint, which incorporated the Master Long-Form
Complaint by reference and set forth the factual circumstances
unique to that individual plaintiff. A Master Complaint was filed
on October 16, 2017 and an Amended Complaint was filed
November 17, 2017.
* * *
Generally, the Amended Complaint alleges Defendants knew,
or should have known, the Option and Option Elite filters were
defective and unreasonably dangerous based on i) [the
Defendants’] failure to conduct sufficient clinical testing, ii) the
IVC filters[’] high rate of embedment, fracture, migration, and
excessive tilting and perforation of the vena cava wall once
implanted in the human body, and iii) Defendants’ failure to issue
a recall of the filters or otherwise notify consumers that a safer
device was available.
Important for the purposes of this Opinion, the Amended
Complaint alleges Defendants provided false information relating
to the filters[’] safety, efficacy, failure rate, and approved uses to
patients, physicians, and medical community at large.
The Amended Complaint sounds in Negligence, Strict
Liability – Failure to Warn, Strict Liability – Design Defect, Strict
Liability – Manufacturing Defect, Breach of Implied Warranties,
Breach of Express Warranty, Negligent Misrepresentation,
Violations of the Unfair Deceptive Trade Practices Act, Wrongful
Death, Loss of Consortium, and Punitive Damages.
-3-
J-A03038-22
Trial Ct. Op. at 1-3 (paragraph breaks added and record citations omitted).
According to Appellant, the current number of cases in the mass tort litigation
“is around 1700.” Appellant’s Brief at 16 n.7.
We note the relevance of one particular lawsuit to this matter: Reed-
Brown v. Rex Medical L.P., docketed in the Philadelphia Court of Common
Pleas at March Term 2017 No. 241. The Honorable Michael Erdos presided
over a jury trial in October of 2019. The trial court in the instant matter
summarized the Reed-Brown case as follows:
Plaintiff Reed-Brown presented evidence showing [Appellant]
“failed to submit accurate results from studies, failed to send
complaints to the FDA regarding the Option Filter[,] and
misrepresented data.” [Reed-Brown Trial Ct. Op., 9/9/20, at
22.4] Furthermore, Plaintiff Reed-Brown proved [Appellant]
“lobbied its clinical investigators to change their findings, chose
not to use the gold standard of a CT scan to look for complications,
told the monitor not to look for perforations[,] and misrepresented
to the FDA that there were four [pulmonary emboli] when there
were actually eight.” Id. at 24. “They also omitted critical data
such as the complaints from physicians regarding their inability to
retrieve the Option Filter once it was implanted.” Id. at 24-25.
Despite testimony from [Appellant] that it had a negative net
worth, the Reed-Brown jury found this evidence warranted the
imposition of punitive damages, and awarded punitive damages
in the amount of $30,315,726[.5 Reed-Brown Trial Ct. Op at 2.]
____________________________________________
4 Appellant provided, in its brief, a copy of the Reed-Brown trial court
opinion.
5 Appellant avers that “[i]n early September 2020, the Reed-Brown cases[ ]
were all settled [sic].” Appellant’s Brief at 15. Such settlement appears to
have been reached after the jury trial, and after Appellant took an appeal to
this Court in that matter. See Brown v. Rex Medical, L.P., 336 EDA 2020
(Footnote Continued Next Page)
-4-
J-A03038-22
Trial Ct. Op. at 3 (paragraph break added).
In connection with Appellant’s claim that it had a negative net worth,
we reiterate that in December 2015, Appellant sold the Option product line to
Argon for $160 million. See Discovery Master’s Recommended Order, 8/1/20,
at 2 n.1.6
On March 7, 2016, the first IVC filter case against [Appellant] was
filed in Philadelphia. Plaintiffs allege that shortly thereafter, in
2016, [more than] $23,000,000 was transferred by [Appellant] to
limited partner Jim McGuckin, a comparable amount [to] limited
partner Whitfield Gardner, and almost $3,000,000 to [Appellant’s]
president Lindsay Carter. It is alleged that Gardner, McGuckin
and Carter authorized these transfers.
Id. These alleged transfers totaled almost $50 million. Trial Ct. Op. at 3.
According to Appellant, on December 23, 2019, a separate “fraudulent
conveyance lawsuit was filed in Philadelphia county against” Appellant,
Gardner, McGuckin, and Carter. See Discovery Master’s Op., 8/1/20, at 4.
The trial court summarized:
To explore the discrepancy between the $160 million sale price
and the testimony [at the Reed-Brown trial that Appellant had a
negative net worth,] Plaintiffs sought to depose [three individuals:
limited partner Gardner; Appellant’s accountant, Celeste Barr;
and Appellant’s accounting manager, Barbara Aruffo.] Plaintiffs
also sought documents related to [Appellant’s revenue, profits,
____________________________________________
(Pa. Super.) Appellant filed a praecipe to discontinue that appeal on October
8, 2020.
6The Discovery Master issued both a three-page recommended order and an
11-page opinion.
-5-
J-A03038-22
bank accounts, tax returns, balance sheets, and bonus payments
made to employees.]
[Appellant] objected to these discovery requests as
overbroad, not reasonably calculated to lead to the discovery of
admissible evidence, any value gained from the depositions is
outweighed by the unreasonable annoyance and embarrassment
to the witnesses, the information requested is not reasonably
related to proper punitive damages evaluation, and testimony on
those matters would lead to unfair prejudice, confusion of the
issues, and the jury being misled into deciding issues on irrelevant
circumstances. See [Discovery Master’s Op., 8/1/20, at 4.]
Additionally, [Appellant] argued Plaintiffs were improperly using
this mass tort litigation to obtain discovery for a separate
fraudulent conveyance lawsuit filed against [Appellant, President
Carter and Limited Partners McGuckin and Gardner.] Finally,
[Appellant] argued Plaintiffs have not proven they are entitled to
punitive damages discovery on all cases.
On August 1, 2020, the Court-appointed Discovery Master,
the Honorable Mark Bernstein (Ret.), granted Plaintiffs’ requests
in part and permitted Plaintiffs to serve no more than ten
interrogatories limited to the following topics:
1) [Appellant’s] net worth,
2) annual financial statements or balance sheets from
2014 – present,
3) the receipt of significant funds since January 2015,
including income, capital infusions, or proceeds of sales,
4) profits received by [Appellant] from the sale of the
Option product line, and
5) the disposition of the funds from the sale of the Option
product line, including bonuses, the name of the person(s)
authorizing the distributions, and the process by which the
distribution from the proceeds of sale were made.
See Discovery Master’s [Recommended Order at] 1-2.
Discovery Master Bernstein further recommended all of the
responses shall be treated as confidential and will only be
-6-
J-A03038-22
disclosed to attorneys and their agents working in this litigation.
Discovery Master Bernstein denied Plaintiffs’ request for
depositions without prejudice to renewing their request if the
responses to the interrogatories are deemed inadequate. Id.
Trial Ct. Op. at 3-4 (paragraph breaks added and some citations omitted).
On October 14, 2020, Appellant filed a 14-page objection to the
Discovery Master’s recommendations. It argued the master erred in
permitting the plaintiffs to conduct punitive damages discovery because: (1)
“Plaintiffs failed to prove they were entitled to punitive damages in each case
pending in this litigation;” (2) the discovery “would be cumulative of the
punitive damages evidence presented in the Reed-Brown matter[;]” and (3)
the discovery would improperly go beyond the topic of Appellant’s “wealth.”
Trial Ct. Op. at 5.
On October 30, 2020, the trial court entered the underlying order,
overruling Appellant’s objections and adopting the Discovery Master’s
recommendations. Appellant filed a timely notice of appeal.
On January 28, 2021, this Court issued a per curiam rule on Appellant
to show cause why this appeal should not be quashed, as the trial court’s
October 30, 2020, did not appear to be a final.7 Appellant responded that the
____________________________________________
7 We note that on March 23, 2021, almost four months after the notice of
appeal was filed, and two months after this Court’s rule to show cause, the
trial court issued an order directing Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Appellant filed a statement on
April 13, 2021.
-7-
J-A03038-22
order was an appealable collateral order pursuant to Pa.R.A.P. 313. On
February 17th, this Court discharged the rule to show cause, advising that the
merits panel may revisit this issue.8
Appellant presents four issues for our review:
1. When counsel files a master Long Form complaint at a mass
tort docket to encompass as many plaintiffs and claims and laws
as possible,
(a) do the ordinary pleading and proof requirements apply
such that two conclusory paragraphs are inadequate to
establish a prima facie punitive damages claim; and
(b) if a jury applies Georgia law to resolve a design-defect
claim as to one device and one defendant after that plaintiff’s
other claims have been dismissed (including manufacturing
defect and failure to warn) based on the facts of her case,
does Pennsylvania law limit that jury’s decision to that case?
2. Is the prejudice and risk of juror confusion impermissibly
multiplied by the overbreadth of the order in ordering information
far beyond that authorized by Pa.R.Civ.P. No. 4003.7[?]
3. Does due process limit the ability to punish a defendant to proof
of wrongdoing and intent by that defendant in that case?
4. Was the order overbroad in reaching beyond the limited
partnership itself?
Appellant’s Brief at 8 (paragraph breaks added).
____________________________________________
8 Contrary to Appellant’s summation, this Court did not “allow[ ] the appeal to
proceed as a collateral order appeal[.]” See Appellant’s Brief at 23. Instead,
this Court merely discharged the rule to show cause, and allowed the “appeal
[to] proceed,” but specifically advised Appellant that the merits panel may
“revisit[ ]” this issue. Order, 2/17/21.
-8-
J-A03038-22
In its opinion, the trial court suggests this appeal should be quashed, as
the underlying order does not meet the definition of an appealable collateral
order under Pa.R.A.P. 313(b). Trial Ct. Op. at 6-7. Appellant maintains this
appeal is proper under the same rule. After review, we conclude the order is
not appealable, and therefore quash this appeal.
“[A]n appeal may be taken as of right from any final order of a . . . trial
court.” Pa.R.A.P. 341(a). A final order is generally one that “disposes of all
claims and of all parties” or “is entered as a final order pursuant to” Pa.R.A.P.
341(c). Pa.R.A.P. 341(b)(1), (3).
However, an appeal may be taken as of right from a collateral order
pursuant to Pa.R.A.P. 313. That Rule provides:
(a) General rule.—An appeal may be taken as of right from
a collateral order of a trial court or other government unit.
(b) Definition.—A collateral order is an order separable from
and collateral to the main cause of action where the right involved
is too important to be denied review and the question presented
is such that if review is postponed until final judgment in the case,
the claim will be irreparably lost.
Pa.R.A.P. 313(a)-(b).
This Court has explained:
To satisfy the collateral order doctrine, the appellant must
demonstrate that the order “1) is separable from and collateral to
the main cause of action; 2) involves a right too important to be
denied review; and 3) presents a question that, if review is
postponed until final judgment in the case, the claim will be
irreparably lost.”
The first prong, separability, occurs when we can address the
issue surrounding the disputed order without analyzing the
-9-
J-A03038-22
ultimate issue in the underlying case. As for the second prong,
importance, “it is not sufficient that the issue be important to the
particular parties.” Instead, the issue “must involve rights deeply
rooted in public policy going beyond the particular litigation at
hand.” We must interpret the collateral order doctrine narrowly,
and each of the above prongs must be clearly present for us to
deem an order collateral.
“[T]he question of whether the collateral order doctrine has
been met is jurisdictional in nature.” “Where an order satisfies
Rule 313’s three-pronged test, an appellate court may exercise
jurisdiction even though the order is not final.” “If the test is not
met, [ ] and in the absence of another exception to the final order
rule, there is no jurisdiction to consider an appeal of such an
order.”
Cabot Oil & Gas Corp. v. Speer, 241 A.3d 1191, 1196–97 (Pa. Super. 2020)
(Cabot Oil) (paragraph break added and citations omitted).
"[I]n general, discovery orders are not final, and are therefore
unappealable.” T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056 (Pa. Super. 2008)
(citation omitted). However, “an appeal from a discovery order raising a
question of the application of a privilege is separable from the underlying
issue, so long as the issue of privilege may be addressed by an appellate court
without analysis of the underlying issue.” Id., quoting Castellani v.
Scranton Times, L.P., 916 A.2d 648, 652 (Pa. Super. 2007).
In its brief, Appellant reiterates its claim that the requirements of
Pa.R.A.P. 313 have been met. In support, it avers the following: the trial
court’s order will require Appellant “to disclose private financial information
that far exceeds the narrow parameters set forth in [Pa.R.C.P.] 4003.7, which
only permits the disclosure of ‘information concerning the wealth of a
- 10 -
J-A03038-22
defendant.’” Appellant’s Brief at 1. Furthermore, the discovery permitted
would be “a broad-ranging inquiry not just into net worth but also the uses of
money, the recipients of money, and the decision-making about where money
might be spent.” Id. at 2. “[C]ompelling [Appellant] to produce highly private
information . . . that necessarily exposes highly private information of non-
parties requires immediate review, because of the havoc that can be wrought
from disseminating broadly information[.]” Id. at 3. The discovery would
also be directed against both parties and non-parties. Finally, the fact that
the order is entered on the mass tort docket would make the discovery
“available to any of the 1[,]700+ cases (and any still-to-be-filed), with the
only restriction on its use being subject to” the discretion of each trial judge,
who is “assigned on the eve of trial.” Id. If this appeal were quashed,
Appellant “could not appeal until there is a final order at the mass tort
docket — [with] all claims and all parties resolved pursuant to [Pa.R.A.P.]
341 — which will take many years[.]” Id. at 4 (emphasis in original). Thus,
“their privacy rights in their financial documents will be irreparably lost if
review of this question ‘is postponed until final judgment[.]’” Id.
First, we reject Appellant’s reliance on the decision in Farrell v. Regola,
150 A.3d 87 (Pa. Super. 2016), which, as Appellant summarizes, concerned
mental health records. See Farrell, 150 A.3d at 97; Appellant’s Brief at 3.
Pennsylvania courts “have uniformly held that, if an appellant asserts that the
trial court has ordered him to produce materials that are privileged, then
- 11 -
J-A03038-22
Rule 313 applies.” Farrell, 150 A.3d at 95 (emphasis added). The discovery
order in this case does not relate to any mental health records, nor any
“privilege,” as that term arises for Rule 313 purposes. See id.
(psychiatrist/psychologist-patient privilege). See also Yocabet v. UPMC
Presbyterian, 119 A.3d 1012, 1016 n.1 (Pa. Super. 2015) (this Court had
jurisdiction over appeal from non-final discovery order pertaining to
information protected by peer review privilege and attorney-client privilege).
Next, we note this Court has found appellate jurisdiction existed over
appeals concerning the discovery of an individual’s tax returns and financial
information. In Cabot Oil, on which Appellant also relies, the trial court
directed the defendant attorneys and their client to produce, in discovery, tax
returns and other financial documents. Cabot Oil, 241 A.3d at 1194. On
appeal, this Court agreed that the second prong — importance — of the
collateral order doctrine was met:
[The defendants] have a significant privacy interest in their tax
returns. Dougherty v. Heller, . . . 138 A.3d 611, 629 n.10 [(Pa.
2016), citing] Cooper v. Schoffstall, . . . 905 A.2d 482, 485 n.3
(Pa. 2006) (individuals have “privacy interest in information
contained in federal tax returns. . . . Such information is made
confidential per federal statute”); J.S. [v. Whetzel, 860 A.2d
1112, 1117 (Pa. Super. 2004)] (defense witness’s privacy
interest in information on federal 1099 tax forms raised
“sufficiently important public policy concern” for purposes of
collateral order doctrine).
Further, [the defendants] have a privacy interest in their bank
records and net worth documents. Merithew v. Valentukonis,
. . . 869 A.2d 1040, 1043 (Pa. Super. 2005), abrogated on other
grounds, Rae v. Pa. Funeral Dirs. Ass’n, . . . 977 A.2d 1121(Pa. 2009) (discovery order compelling defendant to disclosure
- 12 -
J-A03038-22
her complete financial worth implicated her privacy interest in her
financial information and raised sufficiently important public policy
concern to satisfy second prong of collateral order doctrine).
Cabot Oil, 241 A.3d at 1197 (emphasis and paragraph break added).
However, not only did the discovery order in Cabot Oil pertain to
individuals’ tax returns and financial information, the decisions cited by the
Cabot Oil panel likewise concerned the financial information of individuals.
Cooper, 905 A.2d at 485 (discovery of financial records of a non-party expert
medical witness); Merithew, 869 A.2d at 1042 (interrogatories of
plaintiff/individual concerning her financial worth); J.S., 860 A.2d at 1117(discovery of non-party expert medical witness’ 1099 tax forms).
Appellant cites no authority in support of the position implicit, but not
outright articulated, in its argument — that for Rule 313 purposes, as a limited
partnership, it enjoys the same privacy interest extended to individuals. As
the trial court recognizes, some of the discovery information will necessarily
reveal some individuals’ names, for example, information concerning
“bonuses” and “the name of the person(s) authorizing the distributions.” See
Trial Ct. Op. at 5. However, directing Appellant, a limited partnership, to
disclose this specific information is distinguishable from the facts presented in
the cases cited above, which directed particular individuals to provide,
broadly, years of tax returns and other documents showing their entire
“financial worth.” See Cooper, 905 A.2d at 485; Cabot Oil, 241 A.3d at
1197; Merithew, 869 A.2d at 1042; J.S., 860 A.2d at 1117.
- 13 -
J-A03038-22
Accordingly, we conclude Appellant has not established the second
prong of the collateral order doctrine — that the underlying discovery order
“involves a right too important to be denied review.” See Pa.R.A.P. 313(b);
Cabot Oil, 241 A.3d at 1196–97. Thus, we are constrained to quash this
appeal. See Cabot Oil, 241 A.3d at 1196–97. We need not review whether
the other two prongs of the collateral-order test are met. See Pa.R.A.P.
313(b); Cabot Oil, 241 A.3d at 1196–97.9
Appeal quashed.
Judge Dubow joins the Memorandum.
Judge Stabile Concurs in the Result.
____________________________________________
9 The trial court further suggests Appellant has waived its argument— that the
discovery order would require “disclosure of private financial information of
non-defendants in this litigation” —for failure to include it in its objections to
the Discovery Master’s recommendation. Trial Ct. Op. at 7. Appellant
acknowledges the trial court’s discussion of waiver, but does not cite, in
refutation, the place in the certified record where it preserved this particular
issue. See Appellant’s Brief at 23-24 & n.9.
In any event, to the extent Appellant, a limited partnership, argues the
discovery order infringed upon the privacy rights of individuals, we remind
Appellant’s counsel that a party “lack[s] standing to assert the alleged
deprivation of another’s rights.” See Cabot Oil, 241 A.3d at 1196 (“Under
the Rules of Civil Procedure, [the a]ppellants’ spouses or law partners could
have moved to intervene in this case to assert and protect their rights.”). See
also Pa.R.C.P. 2327(4) (“At any time during the pendency of an action, a
person not a party thereto shall be permitted to intervene . . . if the
determination of such action may affect any legally enforceable interest of
such person whether or not such person may be bound by a judgment in the
action.”).
- 14 -
J-A03038-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/09/2022
- 15 -