1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-27-1996

In Re: Orthopedic Bone

Precedential or Non-Precedential:

Docket 96-1131,96-1132

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"In Re: Orthopedic Bone" (1996). 1996 Decisions. Paper 91.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/91
 FOR PUBLICATION 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ____________ 

 Nos. 96-1131 & 96-1132 

 ____________ 

 IN RE: ORTHOPEDIC BONE SCREW PRODUCTS LIABILITY LITIGATION 

 Scoliosis Research Society 

 and Steven M. Mardjetko, M.D., 

 Petitioners at No. 96-1131 

 Appellants at No. 96-1132 

 ______________________________________________ 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 D.C. Civil Action No. MDL-1014 

 ___________________ 

 Argued August 8, 1996 

 Before: MANSMANN and SCIRICA, Circuit Judges 

and DIAMOND, District Judge 

 ________________ 

 ORDER OF DISMISSAL 

 ________________ 

 On January 2, 1996, the Scoliosis Research Society 

("SRS") and Steven M. Mardjetko, M.D., filed a motion seeking to 

stay public disclosure by plaintiffs of data underlying a study 

of the safety and efficacy of bone screws, entitled "A Historical 

Cohort Study of Pedicle Screw Fixation in Thoracic, Lumbar and 

Sacral Spinal Fusion." They asserted the data was privileged 

under the Illinois Medical Studies Act, 5 Ill. Con. Stat. 5/8- 

2101 et seq. 

 In a memorandum dated February 14, 1996, the district 

court denied the motion. First, the district court found the 

Illinois Medical Studies Act inapplicable under Fed R. Evid. 501 

because it believed "there [was] a pervasive federal aspect to 

the litigation," mandating application of the federal law of 

privilege. Memorandum and Order, In re: Orthopedic Bone Screw 

Products Liability Litigation, MDL 1014 at 4 (E.D. Pa. February 
14, 1996) (Pretrial Order No. 252). Second, the district court 

found that Illinois law did not govern under Klaxon v. Stentor 

Electric Mfg. Co., 313 U.S. 487 (1941). Finally, the court 

reaffirmed its prior ruling that Cohort Study data could be used 

in public comments to the FDA under Pansy v. Borough of 

Stroudsburg, 23 F.3d 772 (3d Cir. 1994). In a separate 

memorandum, the district court also denied specific objections of 

various defendants and intervenors to the disclosure of Cohort 

Study data in public comments to the FDA. Memorandum and Order, 

In re: Orthopedic Bone Screw Products Liability Litigation, MDL 

1014 (E.D. Pa. February 14, 1996) (Pretrial Order No. 254). 

 On February 20, 1996, SRS and Dr. Mardjetko filed this 

appeal and petition for a Writ of Mandamus relating to Pretrial 

Orders No. 252 and 254. Since that time, plaintiffs have filed 

public comments with the FDA containing Cohort Study data. 

Because that disclosure cannot now be undone, we will dismiss the 

appeal and petition as moot. We will also vacate Pretrial Orders 

No. 252 and 254 because SRS and Dr. Mardjetko have, through no 

fault of their own, been deprived of a review on the merits of 

the district court's adverse rulings and ought not to be forced 

to acquiesce in them. U.S. Bancorp Mortgage Company v. Bonner 

Mall Partnership, 115 S. Ct. 386, 391-92 (1994). Our order does 

not affect any other pretrial order. 

 Should the SRS and Dr. Mardjetko raise claims of 

privilege again before the district court, we note that the 

Supreme Court's recent decision in Medtronic, Inc. v. Lohr, No. 

95-886, 64 U.S.L.W. 4625 (June 26, 1996), may bear upon whether 

the Illinois Medical Studies Act applies to Cohort Study data 

under Fed. R. Evid. 501. Of course we express no opinion on the 

matter and leave this question to the district court in the first 

instance. 

 Each party to bear its own costs. 

 BY THE COURT, 

 /s/ Anthony J. Scirica 

 Circuit Judge 

Dated: August 27, 1996