DISCUSSION
Abbott objects to Plaintiffs request to redepose Mr. Miles
White, Dr. John Bodner, and Dr. Donald Sellers. The Court will

discuss each of these Abbott employees in turn.

A. Redeposition of Abbott CEO Miles White.

Plaintiffs may not redepose Mr. White absent a showing that:
1) it is not duplicative under this Court’s April 234 Order; 2)
Mr. White possesses relevant and otherwise unavailable
information; and 3) Plaintiffs have exhausted less burdensome
avenues for obtaining the desired information. See Thomas v.
IBM, 48 F.3d 478, 482-84 (10% Cir. 1995) (noting that plaintiffs
must satisfy these standards in seeking to depose high ranking
corporate officials, who likely have very little personal
knowledge of the issues at stake.)

In this case, Plaintiffs have failed to make such a showing.
First, it is clear that Plaintiffs seek to question Mr. White, at
least in part, about topics covered in his first deposition -
such as the November 1999 e-mail. It was this e-mail that
prompted Judge Downing in the King County Superior Court in

Washington to permit Plaintiffs to depose Mr. White in the first

> Although Abbott initially objected to Plaintiffs’ request
to redepose Ms. Marcia Thomas and Mr. Matthew Klamrzynski,it has
withdrawn its objection to their depositions. Therefore, the
Court will not discuss these depositions here.

4


about these topics, they have not revealed what additional
questions they wish to pose to Dr. Bodner, or explained why
exploring these areas again would not result in duplicative
testimony, in contravention of the Agreed Discovery Plan.
Therefore, the Court grants Abbott’s Motion with respect to Dr.

Bodner.

C. Redeposition of Dr. Donald Sellers.

Dr. Sellers is the former project manager for the
development of Abbott’s Azsym beta-hCG assay. Plaintiffs request
that they be permitted to redepose Dr. Sellers unless “Abbott is
willing to stipulate that Dr. Sellers will not testify
differently in any respect from his deposition.” The Court will
not permit Plaintiffs to redepose Dr. Sellers to ensure that he
will not distance himself from his prior testimony. If Dr.
Sellers attempts to offer testimony at trial that contradicts his
deposition testimony, Plaintiffs are free to impeach Dr. Sellers.
Because Plaintiffs have not offered any other basis for

redeposing Dr. Sellers, Abbott’s Motion is granted.


evidence.” The Court concludes, after reviewing the FDA’s
warning letter, the Consent Decree, and the related deposition
testimony, that the Consent Decree is not relevant to Plaintiffs’
claims. Notably, the Rufer court reached the same conclusion,
ruling that evidence of the Consent Decree would not be
admissible at trial. Rufer v. Abbott Labs, Inc., No. 99-2-27090-
8 SEA (April 19, 2001).

The Consent Decree did not identify the beta-hCG assay as
one of the Abbott products of concern. And while the Consent
Decree focused upon manufacturing deficiencies, Plaintiffs,
conversely, allege that their lawsuits are based upon design
defects and a failure to warn. Although Plaintiffs insist that
the Consent Decree is significantly broader, covering a variety
of issues in addition to manufacturing concerns, the FDA itself
labeled its investigation into Abbott as stemming from its
concern regarding Abbott’s manufacturing practices. See, Pls.
Ex. 1, Carol Lewis, Manufacturing Misdeeds Cost Abbott Record-
Breaking Payment, FDA Consumer Magazine (May-June 2000).
Plaintiffs have failed to demonstrate how Abbott’s manufacturing
practices are relevant to their case.

The Court will not permit Plaintiffs to engage in a fishing
expedition into an area that Plaintiffs can not show is related

to the present suit.


place. Obviously, redeposing Mr. White regarding this matter
would fly directly in the face of the Agreed Discovery Plan,
which seeks to avoid duplicative testimony.

Next, Plaintiffs have failed to demonstrate that Mr. White
possesses relevant and otherwise unavailable information in this
case. To the contrary, Mr. White testified conclusively that he
did not have knowledge regarding the details of the drafting of
the November 1999 e-mail, and that he did not have personal,
first-hand knowledge of many of the issues raised in this case.

In addition, to the extent Plaintiffs seek to question Mr.
White about the Consent Decree, the Court finds that such
discovery would be irrelevant. Federal Rule of Civil Procedure
26(b) (2) permits discovery into non-privileged matters relevant
to the parties’ claims or defenses. Information is relevant
under Rule 26 if it is “reasonably calculated to lead to the
discovery of admissible evidence.” Fed. R. Civ. P. 26(b) (1). A
court may limit even relevant discovery if: 1) it is cumulative;
2) it is obtainable from a less burdensome, less expensive, and
more convenient means; or 3) the burden or expense of the
proposed discovery outweighs its likely benefit. Fed. R. Civ. P.
26(b) (2).

In the instant case, the Court finds that Plaintiffs have
not demonstrated that discovery relating to the Consent Decree is

“reasonably calculated to lead to the discovery of admissible


duplicative. First, far from being a “last minute defense”, Dr.
Bodner testified at length regarding goat serum in the beta-hccG
assay. Dr. Bodner explained that goat serum was added to the b-
hCG assays “as a blocking mechanism,” that “our assay made use of
a goat to generate the antibody... to inhibit [a binding]
reaction,” Dep. at 47-49, and that “the addition of a normal
goat serum. . . eliminated the [false positive] problem.” Id.
at 160. Dr. Bodner also explained how the goat serum would
reduce interference to prevent false positives. Id. at 49-52.

Next, Dr. Bodner gave extensive deposition testimony
regarding the “redbooks,” explaining how and why they were
created, and describing that a redbook “lists the experiments
that were done. Its basically a running record of the
laboratory.” Dep. at 151-54,

With regard to Exhibit 168, this Exhibit was identified
during Dr. Bodner’s deposition and he testified extensively about
it. Finally, Dr. Bodner testified at length about the steps
taken to reduce the beta~hCG assays’ false positives, even
conceding that Abbott was never able to identify what caused the
false positives. Dep. at 156-59.

In conclusion, Plaintiffs’ assertion that Dr. Bodner had not
previously testified about the identified matters is contradicted
by a review of Dr. Bodner’s deposition testimony. And although

Plaintiffs assert that they wish to question Dr. Bodner further


eo ?
Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Wayne R. Andersen than Assigned Judge Arlander Keys
CASE NUMBER 99 C 7457; 01 C 1312-13; DATE 11/30/2001
o1ci31sd6p
CASE v Block vs. Abbott Laboratories, Inc.
TITLE
[in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
the ion beit d.
MOTION: of the motion being presented,]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due.
(4) oO Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to) [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) Oo Trial[set for/re-set for] on at
(8) oO {Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) (ClGenerai Rule21 CFRCP4i(a)(1) CG FRCP41(a)(2).
ao [Other docket entry] Memorandum Opinion and Order entered. Defendant’s Motion for Protective
Order [#85] is hereby granted.
(ii) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. ou of notices
J | Notices mailed by judge’s staff. BEC 3 (200i
Notified counsel by telephone. date docketed
Docketing to mail notices. RY) . Ob «
Mail AO 450 form. ae : A docktiing: deputy dattials
J | Copy to judge/magistratejudge, 45]
sng a Ariwys v/s0rz00%
courtroom wh hoy date mailed notice
FIV Og deputy’s FT
initials
Date/time received in
‘central Clerk’s Office mailing deputy initials



CONCLUSION

The Agreed Discovery Plan prohibits Plaintffs from
soliciting duplicative deposition testimony from Abbott's
employees. Because Plaintiffs have not demonstrated that
permitting the redepositions of these three employees would not
be duplicative or is “reasonably calculated to lead to the
discovery of admissible evidence,” the redepositions will not be
allowed.

IT IS THEREFORE ORDERED that Defendant’s Motion for a

Protective Order be, and the same hereby is, GRANTED.

DATED: November 30, 2001 ENTER:

ARLANDER KEY
United States Magi ate Judge

10


Finally, there is no evidence that Plaintiffs have exhausted
less burdensome avenues for obtaining the desired information.
Mr. White has already submitted to four hours of deposition
questioning. Plaintiffs have failed to identify to the Court
relevant information that Mr. White has - and that other
employees do not possess - that Plaintiffs have not already
discovered. Absent such a showing, the Court finds that
permitting Mr. White’s redeposition is contrary to well-reasoned

caselaw and the terms of the Agreed Discovery Plan.

B. Redeposition of Dr. John Bodner

Dr. Bodner is a manager of research and development at
Abbott’s Diagnostic Division and supervised the design of
Abbott’s beta-hCG assay. Dr. Bodner was Abbott’s main witness at
trial. Plaintiffs seek to redepose Dr. Bodner regarding 1)”the
last minute defense concocted by [Abbott’s] trial team that goat
serum was intentionally added to undiluted samples to prevent
false positive results;” 2) “thirty or forty ‘red books’ that
were stacked in the courtroom;” 3) prior testing of false
positive results during the development of the assay; and 4)
Exhibit 168 - a research and development protocol that was used
in the design of the beta-hCG assay.

Dr. Bodner was deposed regarding each of these matters in

the Rufer case. The Court finds that a redeposition would be


Pursuant to the terms of the Agreed Order, Plaintiffs
notified Abbott that it sought to redepose several Abbott
employees, claiming that the questioning and testimony would not
be duplicative and that the depositions were, therefore,
permissible. Abbott objects with regard to three of those
employees, contending that the depositions would be duplicative,
and that Plaintiffs are simply seeking permission to conduct a
fishing expedition into a sensitive and irrelevant area;
specifically, Abbott objects to further discovery regarding a
Consent Decree entered into between Abbott and the Food and Drug
Administration (“FDA”).

In 1998, the FDA issued Abbott a warning letter with regard
to several products that were not in compliance with FDA
regulations. The beta-hCG test was not among the products
covered by the warning letter. On November 4, 1999, Abbott
agreed to take certain remedial measures and to pay $100 million
for failing to comply with FDA regulations. The Consent Decree
differentiated between the products that the FDA allowed to
continue in distribution and those that it did not. The FDA
permitted Abbott to continue distributing the beta-hCG test.

Because the parties have been unable to resolve this dispute
with regard to the three Abbott employees, Abbott filed the

present Motion for a Protective Order.


Allegedly, a positive result on Abbott’s beta-hcCG assay indicated
either pregnancy or the presence of cancer. In this case,
although Plaintiffs’ beta-hCG assays came back positive, they
were neither pregnant nor stricken with cancer. Nevertheless,
once it became apparent that they were not pregnant, Plaintiffs
and their physicians presumed that Plaintiffs had cancer.
Plaintiffs submitted to drastic medical treatments, including
radiation, chemotherapy and hysterectomies, to combat a disease
they allegedly never had, based upon their beta-hCG results.

One of the first lawsuits arising from the beta-hCG assay
was a products liability action filed by Jennifer and David Rufer
in Washington State Court. Rufer vy. Abbott Labs., Inc., No. 99-2-27090-8SEA
(Wash. Sup. Ct. 1999). The Rufers obtained a judgment against
Abbott on June 29, 2001. Prior to judgment in the Rufer case,
the parties in these consolidated cases agreed that the
depositions of Abbott employees taken in Rufer would be treated
as having been taken in these consolidated cases. To avoid
duplicative deposition testimony, the Court entered the Order
approving this Agreed Discovery Plan on April 23, 2001.2 Block

v. Abbott Labs., Inc., 99 C 7457 (April 23, 2001).

consolidate their cases for purposes of discovery. The Court will
refer to these cases as the consolidated cases.

*Notably, the plaintiff’s attorney in the Rufer case, Mr.
Joel Cunningham, is also one of the Plaintiffs’ attorneys in the
consolidated cases before this Court.

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TOBY BLOCK, Individually and on behalf
of all others similarly situated,

Plaintiffs, No. 99 C 7457,

)
)
)
)
) 01 C 1312, 0 13
)  o1c¢ 1315,(01 © 1316p
v. )
) Judge Wayne R.
) Andersen
ABBOTT LABORATORIES, INC. . )
) Magistrate Judge
) Arlander Keys
Defendant. )
MEMORANDUM OPINION AND ORDER
Currently before the Court is Defendant’s Motion for a
Protective Order barring the redeposition of five Abbott
Laboratories, Inc. (“Abbott”) employees. In an Agreed Discovery
Plan entered by this Court on April 23, 2001, the parties agreed
that depositions taken in a related case would be treated as
having been taken in these consolidated cases, and that
Plaintiffs would not seek duplicative deposition testimony from
Abbott’s employees. For the reasons set forth below, Defendant’s
Motion is Granted.
BACKGROUND
Plaintiffs filed suit against Abbott, claiming that Abbott’s

beta-hCG assay falsely indicated that they had cancer.?!

' The parties in Block v. Abbott, Goldman v. Abbott, Gibbs
v. Abbott, Hoffman v. Abbott, and Glazer v. Abbott, agreed to

/O