With the multidistrict litigation bellwether trials scheduled to begin next month, on September 13, 2017, U.S. District Judge Richard L. Young issued an Order overruling Cook’s appeal from the denial of a Motion for Protective Order Barring Proposed Deposition of former Cook Group, Inc. president Kem Hawkins. The Court ordered that Cook produce its former executive for a deposition by September 27, 2017.
In early 2017, Plaintiffs noticed the deposition of Mr. Hawkins to ask him questions regarding IVC filter documents including emails from his personal email account. Plaintiffs contend those documents reveal that, in his role as the leader of Cook, Hawkins was intimately involved in the decision-making process and strategy regarding critical issues in this case, including decisions regarding the testing, design, marketing, and production of the Gunther Tulip and Celect IVC filters.
On April 27, 2017, Defendants filed a Motion for Protective Order to prevent the Plaintiffs from deposing Hawkins. However, on June 30, 2017, the Magistrate Judge denied Cook’s request and stated that “Hawkins was involved in the decision-making process and strategy regarding the testing, design, marketing, and production of the [Gunther Tulip and Celect] filters.” Further, in rejecting Cook’s attempt to thwart potentially damaging discovery, the Magistrate held:
“… Hawkins is the better source for information related to this litigation because he was the president of Cook during the time the Gunther Tulip and Celect IVC filters were manufactured and sold in the United States. Moreover, Hawkins regularly communicated on a personal email account, which Plaintiffs suspect the Cook Defendants did not search when producing responsive documents to their discovery requests. This all suggests that Hawkins has relevant knowledge that is not already available to Plaintiffs.”
The District judge agreed and held that a review of the sealed documents shows Hawkins was involved with the “strategic decisions regarding the enhancement of the Tulip filter and the development of the Celect filter to increase market share. He was aware of the timetable for the Celect clinical trials and sought to speed up the process to get Celect on the market. Most importantly, the documents reflect that he was aware of the risk that both IVC filters could perforate the wall of the vena cava.”
The Cook Defendants must produce Hawkins for deposition within two weeks of the Court’s September 13, 2017 Order. The ruling provides that Plaintiffs are entitled to seek relevant documents from Hawkins and to ask questions about his personal email account.
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