Case: 5:17-cv-00338-KKC Doc #: 50 Filed: 10/01/19 Page: 1 of 4 - Page ID#: 1086
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF KENTUCKY
`CENTRAL DIVISION
`AT LEXINGTON
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`TIMOTHY ROBINSON on behalf of T.R., a
`minor child,
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`CIVIL ACTION NO. 5:17-338-KKC
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`Plaintiff,
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`v.
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`ELI LILLY AND CO.,
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`Defendant.
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`*** *** ***
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`OPINION AND ORDER
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`This matter is before the Court on Defendant’s motion for a protective order preventing
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`Plaintiff from deposing Dr. James Krull and a Rule 30(b)(6) designee from Defendant’s Pregnancy
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`and Teratogenicity Safety Committee (“PTSC”) (DE 29). For the reasons set forth below, the Court
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`GRANTS Defendant’s motion.
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`BACKGROUND
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` On November 5, 2018, the Court entered a scheduling order that bifurcated discovery in
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`this case (DE 20). Pursuant to that order, the first phase of discovery is cabined to the issue of
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`general causation: “whether in utero exposure to Prozac can cause aortic stenosis or similar cardiac
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`malfunctions.” (DE 20 at 2) As the Court explained, “addressing general causation before
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`considering Plaintiff-specific issues will best ensure the most efficient resolution of these actions
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`and use of the parties’ and the Court’s resources.” (DE 20 at 2). That order notwithstanding, on
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`July 19, 2019 Plaintiff noticed Dr. James Krull, an Eli Lilly surveillance scientist, as well as the
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`chairperson of the PTSC (DE 29 at 4, 29-3 at 3). On July 26, 2019, Plaintiff filed this motion for
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`a protective order (DE 29).
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`1
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`Case: 5:17-cv-00338-KKC Doc #: 50 Filed: 10/01/19 Page: 2 of 4 - Page ID#: 1087
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`ANALYSIS
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` Under Fed. R. Civ. P. 26(c), “[a] party or any person from whom discovery is sought may
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`move for a protective order in the court where the action is pending,” and “[t]he court may, for
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`good cause, issue an order to protect a party or person from annoyance, embarrassment,
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`oppression, or undue burden or expense.” “The burden of establishing good cause for a protective
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`order rests with the movant,” and, to demonstrate good cause, a movant “must articulate specific
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`facts showing clearly defined and serious injury resulting from the discovery sought.” Nix v.
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`Sword, 11 Fed. Appx. 498, 500 (6th Cir. 2001) (quoting Avirgan v. Hull, 118 F.R.D. 252, 254
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`(D.D.C. 1987) (internal quotation marks omitted). However, that standard does not require a court
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`to deny a motion for a protective order where a noticed deposition would apparently violate a
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`discovery order. See, e.g., Hardy Oil Co. v. Nationwide Agribusiness Ins. Co., No. 11-CV-75-JBC,
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`2011 WL 6056599, at *2 (E.D. Ky. Dec. 6, 2011) (denying a motion for a protective order but
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`limiting the depositions to topics related to the first phase of discovery). A movant can satisfy Rule
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`26(c)’s “good cause” requirement by showing that the proposed discovery is irrelevant. Anwar v.
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`Dow Chem. Co., 876 F.3d 841, 854 (6th Cir. 2017) (quoting Smith v. Dowson, 158 F.R.D. 138,
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`140-42 (D. Minn. 1994)).
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` Defendant argues that the depositions of these two employees would be irrelevant to the
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`issue of general causation, and that Plaintiff is attempting here to seek “discovery from company
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`witnesses on topics such as notice, failure to warn and failure to investigate, which are relevant
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`only if the case progresses to the liability phase.” (DE 29 at 1-2) According to Defendant, Dr. Krull
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`possess knowledge which “may be relevant to the types of information that Lilly evaluated… but
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`is irrelevant to the threshold issue of whether Prozac is capable of causing aortic stenosis or similar
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`cardiac malfunctions.” (DE 29 at 4) As for the designee of the PTSC, Defendant argues,
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`2
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`essentially, that the work of that committee is not relevant to the causation question, and that
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`Plaintiff has no meaningful basis on which to believe otherwise. According to Defendant, citing
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`the deposition of Dr. Timothy Garnett, Eli Lilly’s Chief Medical Officer, the PTSC is an “ad hoc
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`committee,” has purportedly only met once to “discuss data on Prozac and birth defects,” “did not
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`make a determination relevant to general causation,” and, regardless, “plaintiff’s expert certainly
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`has access to the studies” which the PTSC reviewed during that meeting (DE 29 at 4-5).1
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`Plaintiff claims, also citing Dr. Garnett’s deposition, that a team “led by James Krull” has
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`gathered “a wealth of information regarding cardiac birth defects in the Prozac patient population,”
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`(DE 35 at 1) and that Dr. Krull was “in charge of the team responsible for Eli Lilly’s
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`pharmacovigilance related to Prozac.” (DE 35 at 3) According to Plaintiff, although Dr. Garnett
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`“was aware” of the PTSC’s purported discussions related to Prozac, “he had limited knowledge of
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`the content of those discussions.” (DE 35 at 3) Plaintiff argues that Defendant generally “cannot
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`prove that the information Dr. Krull and the [PTSC] possess is irrelevant to whether in utero
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`exposure to Prozac can cause cardiac birth defects such as aortic stenosis,” and has not satisfied
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`the “good cause” requirement of Rule 26(c) (DE 35 at 2).
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`The Court finds that Defendant has sufficiently demonstrated that the depositions at issue
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`here are irrelevant to the first phase of discovery, and that Plaintiff has failed to show otherwise.
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`The Court is unconvinced that the deposition testimony of either Dr. Krull or a representative of
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`the PTSC would address the narrow issue of general causation. Plaintiff’s sole expert in this case,
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`Dr. Thomas Sadler, has already issued his report and has been deposed on the issue of general
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`causation (DE 39 at 1). As Defendant highlights, there has been no indication that Dr. Sadler
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`1 Along with its motion, Defendant filed under seal the partially redacted minutes from the meeting
`at issue (DE 32), which the Court has reviewed.
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`3
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`Case: 5:17-cv-00338-KKC Doc #: 50 Filed: 10/01/19 Page: 4 of 4 - Page ID#: 1089
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`required further information from Dr. Krull or a representative of the PTSC (DE 39 at 1). Since
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`the “causation [inquiry] involve[s] scientific assessments that must be established through the
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`testimony of a medical expert,” Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 677 (6th Cir. 2011),
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`the depositions of Defendant’s employees seem irrelevant to the first phase of discovery. See also
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`Hans v. Matrixx Initiatives, Inc., No. 3:04-CV-540, 2007 WL 2668594, at *3 (W.D. Ky. Sept. 6,
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`2007) (applying Kentucky law).
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`CONCLUSION
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` Accordingly, the Court hereby ORDERS that Defendant’s motion for a protective order is
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`GRANTED.
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` Dated October 1, 2019
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`4
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