Antitrust Law Daily Wrap Up, ANTITRUST—D. Colo.: Motion to take plaintiff’s deposition granted in bone mill antitrust action, (Jun 15, 2015)

By Linda O’Brien, J.D., LL.M.

In an action by a producer of a medical bone mill against medical devices company Medtronic for allegedly attempting to monopolize the market for mechanical bone mills used in spinal fusion surgery, a magistrate judge in the federal district court in Denver has granted in part the defendants’ motion for leave to take the deposition of the plaintiff company. However, the scope of the deposition was limited to damages theories already presented by the plaintiff in the case. The defendants’ motion to compel responses to interrogatories also was granted (Lenox MacLaren Surgical Corporation v. Medtronic, Incorporated, June 11, 2015, Wang, N.).

Lenox MacLaren Surgical Corporation developed and produced a medical bone mill for use in spinal fusion surgery. In 2000, the company entered a five-year exclusive supply and license agreement with Medtronic, Inc., under which Medtronic had exclusive rights to market the mill to hospitals and surgeons for one year. After the license agreement expired, another Medtronic subsidiary began selling a pneumatic bone mill attachment in competition with the Lenox bone mills. Moreover, Medtronic initiated a voluntary recall of the Lenox mills. An arbitration panel found in Lenox’s favor on an intentional interference with prospective business relations claim brought against Medtronic over the recall.

Lenox then filed suit against Medtronic, alleging attempted monopolization in violation of Section 2 of the Sherman Act. In June 2013, the district court granted Medtronic’s motion for summary judgment, dismissing Lenox’s claims. However, in August 2014, the Tenth Circuit reversed the district court’s summary judgment order and reopened the case. Subsequently, the parties entered into an agreement to govern outstanding discovery matters, in which Lenox agreed to produce a Lenox representative for deposition on topics related to claimed damages. Medtronics served a 46-topic notice targeted at facts Lenox took in the litigation, including damages, market definition and power, and exclusionary conduct. Before the court was Medtronics’ motion for leave to take the deposition of Lenox under Federal Rule of Civil Procedure 30(b)(6) and motion to compel responses to interrogatories.

Motion for leave. Rule 30 requires that topics be framed with reasonable particularity to ensure that the party is able to properly designate and educate a representative to provide competent and accurate testimony on behalf of the company, the court explained. The court found that, while the notice was overbroad and placed an undue burden on Lenox given the complexity of the case and ample discovery opportunities that Medtronics pursued, Lenox was not exempt from a Rule 30(b)(6) deposition entirely. Since Lenox had agreed to designate a witness on topics related to damages, Lenox was required to designate a representative to speak to 10 of the 49 topics in notice and limited to damages theories already articulated by Lenox in the case through discovery or expert reports.

Motion to compel. In its motion to compel, Medtronics sought supplemental responses from Lenox to fully describe its claim that Medtronics monopolized the surgical bone mill market, including a description of legal theories, role of each defendant, and facts that supported Lenox’s claim. In its response, Lenox referred to its brief in response to the summary judgment motion and the appellate record.

The court noted that, to the extent Lenox relied on contentions and evidence found in the trial and appellate record of the case, those facts needed to be set forth in its discovery responses in order to provide reasonably comprehensive responses. Thus, Lenox was required to supplement its interrogatory responses by including all supplemental information provided in its prior brief or elsewhere in the trial or appellate record, and specifically identify any business records relied upon instead of a narrative response, the court determined.

The case is No. 10-cv-02139-MSK-NYW.

Attorneys: Stanley M. Gibson (Jeffer, Mangels, Butler & Marmaro, LLP) for Lenox MacLaren Surgical Corp. Catherine Fairley Spillman (Akin, Gump, Strauss, Hauer & Feld, LLP) for Medtronic, Inc., Medtronic Sofamor Danek, Inc., Medtronic PS Medical, Inc., and Medtronic Sofamor Danek Company, Ltd.

Companies: Lenox MacLaren Surgical Corp.; Medtronic, Inc.; Medtronic Sofamor Danek, Inc.; Medtronic PS Medical, Inc.; Medtronic Sofamor Danek Company, Ltd.

Cases: Antitrust ColoradoNews