J-A03038-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE OPTION VENA CAVA FILTER 

LITIGATION

APPEAL OF: REX MEDICAL, L.P.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2332 EDA 2020

Appeal from the Order Entered October 30, 2020

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): No. 170501600

BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 9, 2022

This is a mass tort litigation matter concerning the medical devices,

inferior vena cava filters, intended to prevent pulmonary embolisms. 

Defendant Rex Medical, L.P. (Appellant) appeals from the discovery order,

entered on the “Master Docket,” in the Philadelphia Court of Common Pleas, 

which in effect directed Appellant to provide certain financial information 

related to the plaintiffs’ claims for punitive damages.1 The trial court suggests

the underlying order is not appealable, and specifically not an appealable 

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1 See Pa.R.C.P. 4003.7 (“A party may obtain information concerning the 

wealth of a defendant in a claim for punitive damages only upon order of court 

setting forth appropriate restrictions as to the time of the discovery, the scope 

of the discovery, and the dissemination of the material discovered.”).

As we discuss infra, the trial court’s October 30, 2020, order adopted 

the August 1, 2020, recommendation and opinion of the discovery master, 

and overruled Appellant’s objections thereto. We note no appellee’s brief has 

been filed.
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collateral order under Pa.R.A.P. 313.

2

 We agree, as we conclude that 

Appellant, a limited partnership, does not enjoy the same privacy and policy 

considerations as individuals who are directed to disclose personal financial 

information. We thus quash this appeal.

Appellant is a Pennsylvania limited partnership, with its principal place 

of business in Conshohocken, Pennsylvania.3 The trial court aptly summarized 

the underlying facts and procedural history:

Inferior vena cava (IVC) filters are cone-shaped medical 

devices implanted into the inferior vena cava to “catch” blood clots 

as they travel from the lower portion of the body to the lungs and 

heart; IVC filters were designed to prevent pulmonary emboli[.] 

In June 2009, [Appellant] obtained § 510(k) clearance from the 

FDA to market the Option filter as a permanent IVC filter, with the 

option for removal. In December 2013, [Appellant] obtained 

§ 510(k) clearance to market a second filter, the Option Elite filter. 

[Appellant] sold the entire . . . product line to Defendant Argon 

Medical L.P. [(Argon)] in 2015 for $160 million[.]

Trial Ct. Op., 7/15/21, at 2 (record citations omitted). Appellant and Argon 

are the two named defendants in the amended long form complaint.

On May 11, 2017, the trial court

created the In re: OptionTM Vena Cava Filter Litigation mass 

tort program for the coordination of all cases in which a plaintiff 

alleged . . . they suffered injuries as a result of the implementation 

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2 See Pa.R.A.P. 313(b) (“A collateral order is an order separable from and 

collateral to the main cause of action where the right involved is too important 

to be denied review and the question presented is such that if review is 

postponed until final judgment in the case, the claim will be irreparably lost.”).

3 Plaintiffs’ First Amended Master Long Form Complaint & Jury Demand, 

11/17/17, at 2; Appellant’s Brief at 25.
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of an OptionTM Vena Cava Filter device. Pursuant to Case 

Management Order 1, a “Master Docket,” May Term 2017 No. 

1600, was created to serve as a depository for the filing of 

pleadings, motions, orders and other documents common to all 

cases; once a document or order has been filed on the Master 

Docket, it could be incorporated by reference in any other properly 

filed Motion or Pleading. 

Case Management Order 3 required the filing of a Master 

Long-Form Complaint which made allegations common to all 

plaintiffs in the litigation; the filing of the Master Long-Form 

Complaint superseded the pleadings in each individual case. Each 

individual plaintiff was then required to file a case-specific shortform complaint, which incorporated the Master Long-Form 

Complaint by reference and set forth the factual circumstances 

unique to that individual plaintiff. A Master Complaint was filed 

on October 16, 2017 and an Amended Complaint was filed 

November 17, 2017.

* * *

Generally, the Amended Complaint alleges Defendants knew, 

or should have known, the Option and Option Elite filters were 

defective and unreasonably dangerous based on i) [the 

Defendants’] failure to conduct sufficient clinical testing, ii) the 

IVC filters[’] high rate of embedment, fracture, migration, and 

excessive tilting and perforation of the vena cava wall once 

implanted in the human body, and iii) Defendants’ failure to issue 

a recall of the filters or otherwise notify consumers that a safer 

device was available.

Important for the purposes of this Opinion, the Amended 

Complaint alleges Defendants provided false information relating 

to the filters[’] safety, efficacy, failure rate, and approved uses to 

patients, physicians, and medical community at large.

The Amended Complaint sounds in Negligence, Strict 

Liability – Failure to Warn, Strict Liability – Design Defect, Strict 

Liability – Manufacturing Defect, Breach of Implied Warranties, 

Breach of Express Warranty, Negligent Misrepresentation, 

Violations of the Unfair Deceptive Trade Practices Act, Wrongful 

Death, Loss of Consortium, and Punitive Damages.
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Trial Ct. Op. at 1-3 (paragraph breaks added and record citations omitted).

According to Appellant, the current number of cases in the mass tort litigation 

“is around 1700.” Appellant’s Brief at 16 n.7.

We note the relevance of one particular lawsuit to this matter: ReedBrown v. Rex Medical L.P., docketed in the Philadelphia Court of Common 

Pleas at March Term 2017 No. 241. The Honorable Michael Erdos presided 

over a jury trial in October of 2019. The trial court in the instant matter 

summarized the Reed-Brown case as follows:

Plaintiff Reed-Brown presented evidence showing [Appellant] 

“failed to submit accurate results from studies, failed to send 

complaints to the FDA regarding the Option Filter[,] and 

misrepresented data.” [Reed-Brown Trial Ct. Op., 9/9/20, at 

22.4] Furthermore, Plaintiff Reed-Brown proved [Appellant] 

“lobbied its clinical investigators to change their findings, chose 

not to use the gold standard of a CT scan to look for complications, 

told the monitor not to look for perforations[,] and misrepresented 

to the FDA that there were four [pulmonary emboli] when there 

were actually eight.” Id. at 24. “They also omitted critical data 

such as the complaints from physicians regarding their inability to 

retrieve the Option Filter once it was implanted.” Id. at 24-25. 

Despite testimony from [Appellant] that it had a negative net 

worth, the Reed-Brown jury found this evidence warranted the 

imposition of punitive damages, and awarded punitive damages 

in the amount of $30,315,726[.5 Reed-Brown Trial Ct. Op at 2.]

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4 Appellant provided, in its brief, a copy of the Reed-Brown trial court 

opinion.

5 Appellant avers that “[i]n early September 2020, the Reed-Brown cases[ ]

were all settled [sic].” Appellant’s Brief at 15. Such settlement appears to 

have been reached after the jury trial, and after Appellant took an appeal to 

this Court in that matter. See Brown v. Rex Medical, L.P., 336 EDA 2020 

(Footnote Continued Next Page)
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Trial Ct. Op. at 3 (paragraph break added).

In connection with Appellant’s claim that it had a negative net worth, 

we reiterate that in December 2015, Appellant sold the Option product line to 

Argon for $160 million. See Discovery Master’s Recommended Order, 8/1/20, 

at 2 n.1.6

On March 7, 2016, the first IVC filter case against [Appellant] was 

filed in Philadelphia. Plaintiffs allege that shortly thereafter, in 

2016, [more than] $23,000,000 was transferred by [Appellant] to 

limited partner Jim McGuckin, a comparable amount [to] limited 

partner Whitfield Gardner, and almost $3,000,000 to [Appellant’s] 

president Lindsay Carter. It is alleged that Gardner, McGuckin 

and Carter authorized these transfers.

Id. These alleged transfers totaled almost $50 million. Trial Ct. Op. at 3. 

According to Appellant, on December 23, 2019, a separate “fraudulent 

conveyance lawsuit was filed in Philadelphia county against” Appellant, 

Gardner, McGuckin, and Carter. See Discovery Master’s Op., 8/1/20, at 4.

The trial court summarized:

To explore the discrepancy between the $160 million sale price 

and the testimony [at the Reed-Brown trial that Appellant had a 

negative net worth,] Plaintiffs sought to depose [three individuals: 

limited partner Gardner; Appellant’s accountant, Celeste Barr; 

and Appellant’s accounting manager, Barbara Aruffo.] Plaintiffs 

also sought documents related to [Appellant’s revenue, profits, 

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(Pa. Super.) Appellant filed a praecipe to discontinue that appeal on October 

8, 2020.

6 The Discovery Master issued both a three-page recommended order and an 

11-page opinion.
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bank accounts, tax returns, balance sheets, and bonus payments 

made to employees.]

[Appellant] objected to these discovery requests as 

overbroad, not reasonably calculated to lead to the discovery of 

admissible evidence, any value gained from the depositions is 

outweighed by the unreasonable annoyance and embarrassment 

to the witnesses, the information requested is not reasonably 

related to proper punitive damages evaluation, and testimony on 

those matters would lead to unfair prejudice, confusion of the 

issues, and the jury being misled into deciding issues on irrelevant 

circumstances. See [Discovery Master’s Op., 8/1/20, at 4.] 

Additionally, [Appellant] argued Plaintiffs were improperly using 

this mass tort litigation to obtain discovery for a separate 

fraudulent conveyance lawsuit filed against [Appellant, President 

Carter and Limited Partners McGuckin and Gardner.] Finally, 

[Appellant] argued Plaintiffs have not proven they are entitled to 

punitive damages discovery on all cases.

On August 1, 2020, the Court-appointed Discovery Master, 

the Honorable Mark Bernstein (Ret.), granted Plaintiffs’ requests 

in part and permitted Plaintiffs to serve no more than ten 

interrogatories limited to the following topics:

1) [Appellant’s] net worth,

2) annual financial statements or balance sheets from 

2014 – present,

3) the receipt of significant funds since January 2015, 

including income, capital infusions, or proceeds of sales,

4) profits received by [Appellant] from the sale of the 

Option product line, and

5) the disposition of the funds from the sale of the Option 

product line, including bonuses, the name of the person(s) 

authorizing the distributions, and the process by which the 

distribution from the proceeds of sale were made.

See Discovery Master’s [Recommended Order at] 1-2.

Discovery Master Bernstein further recommended all of the 

responses shall be treated as confidential and will only be 
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disclosed to attorneys and their agents working in this litigation. 

Discovery Master Bernstein denied Plaintiffs’ request for 

depositions without prejudice to renewing their request if the 

responses to the interrogatories are deemed inadequate. Id.

Trial Ct. Op. at 3-4 (paragraph breaks added and some citations omitted).

On October 14, 2020, Appellant filed a 14-page objection to the 

Discovery Master’s recommendations. It argued the master erred in 

permitting the plaintiffs to conduct punitive damages discovery because: (1) 

“Plaintiffs failed to prove they were entitled to punitive damages in each case 

pending in this litigation;” (2) the discovery “would be cumulative of the 

punitive damages evidence presented in the Reed-Brown matter[;]” and (3) 

the discovery would improperly go beyond the topic of Appellant’s “wealth.” 

Trial Ct. Op. at 5.

On October 30, 2020, the trial court entered the underlying order, 

overruling Appellant’s objections and adopting the Discovery Master’s 

recommendations. Appellant filed a timely notice of appeal.

On January 28, 2021, this Court issued a per curiam rule on Appellant 

to show cause why this appeal should not be quashed, as the trial court’s 

October 30, 2020, did not appear to be a final.7 Appellant responded that the 

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7 We note that on March 23, 2021, almost four months after the notice of 

appeal was filed, and two months after this Court’s rule to show cause, the 

trial court issued an order directing Appellant to file a Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal. Appellant filed a statement on 

April 13, 2021.
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order was an appealable collateral order pursuant to Pa.R.A.P. 313. On 

February 17th, this Court discharged the rule to show cause, advising that the 

merits panel may revisit this issue.8

Appellant presents four issues for our review:

1. When counsel files a master Long Form complaint at a mass 

tort docket to encompass as many plaintiffs and claims and laws 

as possible,

(a) do the ordinary pleading and proof requirements apply 

such that two conclusory paragraphs are inadequate to 

establish a prima facie punitive damages claim; and

(b) if a jury applies Georgia law to resolve a design-defect 

claim as to one device and one defendant after that plaintiff’s 

other claims have been dismissed (including manufacturing 

defect and failure to warn) based on the facts of her case, 

does Pennsylvania law limit that jury’s decision to that case?

2. Is the prejudice and risk of juror confusion impermissibly 

multiplied by the overbreadth of the order in ordering information 

far beyond that authorized by Pa.R.Civ.P. No. 4003.7[?]

3. Does due process limit the ability to punish a defendant to proof 

of wrongdoing and intent by that defendant in that case?

4. Was the order overbroad in reaching beyond the limited 

partnership itself? 

Appellant’s Brief at 8 (paragraph breaks added).

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8 Contrary to Appellant’s summation, this Court did not “allow[ ] the appeal to 

proceed as a collateral order appeal[.]” See Appellant’s Brief at 23. Instead, 

this Court merely discharged the rule to show cause, and allowed the “appeal 

[to] proceed,” but specifically advised Appellant that the merits panel may 

“revisit[ ]” this issue. Order, 2/17/21.
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In its opinion, the trial court suggests this appeal should be quashed, as 

the underlying order does not meet the definition of an appealable collateral 

order under Pa.R.A.P. 313(b). Trial Ct. Op. at 6-7. Appellant maintains this 

appeal is proper under the same rule. After review, we conclude the order is 

not appealable, and therefore quash this appeal.

“[A]n appeal may be taken as of right from any final order of a . . . trial 

court.” Pa.R.A.P. 341(a). A final order is generally one that “disposes of all 

claims and of all parties” or “is entered as a final order pursuant to” Pa.R.A.P. 

341(c). Pa.R.A.P. 341(b)(1), (3).

However, an appeal may be taken as of right from a collateral order

pursuant to Pa.R.A.P. 313. That Rule provides:

(a) General rule.—An appeal may be taken as of right from 

a collateral order of a trial court or other government unit.

(b) Definition.—A collateral order is an order separable from 

and collateral to the main cause of action where the right involved 

is too important to be denied review and the question presented 

is such that if review is postponed until final judgment in the case, 

the claim will be irreparably lost.

Pa.R.A.P. 313(a)-(b).

This Court has explained:

To satisfy the collateral order doctrine, the appellant must 

demonstrate that the order “1) is separable from and collateral to 

the main cause of action; 2) involves a right too important to be 

denied review; and 3) presents a question that, if review is 

postponed until final judgment in the case, the claim will be 

irreparably lost.”

The first prong, separability, occurs when we can address the 

issue surrounding the disputed order without analyzing the 
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ultimate issue in the underlying case. As for the second prong, 

importance, “it is not sufficient that the issue be important to the 

particular parties.” Instead, the issue “must involve rights deeply 

rooted in public policy going beyond the particular litigation at 

hand.” We must interpret the collateral order doctrine narrowly, 

and each of the above prongs must be clearly present for us to 

deem an order collateral.

“[T]he question of whether the collateral order doctrine has 

been met is jurisdictional in nature.” “Where an order satisfies 

Rule 313’s three-pronged test, an appellate court may exercise 

jurisdiction even though the order is not final.” “If the test is not 

met, [ ] and in the absence of another exception to the final order 

rule, there is no jurisdiction to consider an appeal of such an 

order.”

Cabot Oil & Gas Corp. v. Speer, 241 A.3d 1191, 1196–97 (Pa. Super. 2020)

(Cabot Oil) (paragraph break added and citations omitted).

"[I]n general, discovery orders are not final, and are therefore 

unappealable.” T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056 (Pa. Super. 2008) 

(citation omitted). However, “an appeal from a discovery order raising a 

question of the application of a privilege is separable from the underlying 

issue, so long as the issue of privilege may be addressed by an appellate court 

without analysis of the underlying issue.” Id., quoting Castellani v. 

Scranton Times, L.P., 916 A.2d 648, 652 (Pa. Super. 2007).

In its brief, Appellant reiterates its claim that the requirements of 

Pa.R.A.P. 313 have been met. In support, it avers the following: the trial 

court’s order will require Appellant “to disclose private financial information 

that far exceeds the narrow parameters set forth in [Pa.R.C.P.] 4003.7, which 

only permits the disclosure of ‘information concerning the wealth of a 
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defendant.’” Appellant’s Brief at 1. Furthermore, the discovery permitted 

would be “a broad-ranging inquiry not just into net worth but also the uses of 

money, the recipients of money, and the decision-making about where money 

might be spent.” Id. at 2. “[C]ompelling [Appellant] to produce highly private 

information . . . that necessarily exposes highly private information of nonparties requires immediate review, because of the havoc that can be wrought 

from disseminating broadly information[.]” Id. at 3. The discovery would 

also be directed against both parties and non-parties. Finally, the fact that 

the order is entered on the mass tort docket would make the discovery 

“available to any of the 1[,]700+ cases (and any still-to-be-filed), with the 

only restriction on its use being subject to” the discretion of each trial judge, 

who is “assigned on the eve of trial.” Id. If this appeal were quashed, 

Appellant “could not appeal until there is a final order at the mass tort 

docket — [with] all claims and all parties resolved pursuant to [Pa.R.A.P.] 

341 — which will take many years[.]” Id. at 4 (emphasis in original). Thus, 

“their privacy rights in their financial documents will be irreparably lost if 

review of this question ‘is postponed until final judgment[.]’” Id.

First, we reject Appellant’s reliance on the decision in Farrell v. Regola, 

150 A.3d 87 (Pa. Super. 2016), which, as Appellant summarizes, concerned 

mental health records. See Farrell, 150 A.3d at 97; Appellant’s Brief at 3. 

Pennsylvania courts “have uniformly held that, if an appellant asserts that the 

trial court has ordered him to produce materials that are privileged, then 
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Rule 313 applies.” Farrell, 150 A.3d at 95 (emphasis added). The discovery 

order in this case does not relate to any mental health records, nor any 

“privilege,” as that term arises for Rule 313 purposes. See id.

(psychiatrist/psychologist-patient privilege). See also Yocabet v. UPMC 

Presbyterian, 119 A.3d 1012, 1016 n.1 (Pa. Super. 2015) (this Court had 

jurisdiction over appeal from non-final discovery order pertaining to 

information protected by peer review privilege and attorney-client privilege).

Next, we note this Court has found appellate jurisdiction existed over 

appeals concerning the discovery of an individual’s tax returns and financial 

information. In Cabot Oil, on which Appellant also relies, the trial court 

directed the defendant attorneys and their client to produce, in discovery, tax 

returns and other financial documents. Cabot Oil, 241 A.3d at 1194. On 

appeal, this Court agreed that the second prong — importance — of the 

collateral order doctrine was met: 

[The defendants] have a significant privacy interest in their tax 

returns. Dougherty v. Heller, . . . 138 A.3d 611, 629 n.10 [(Pa. 

2016), citing] Cooper v. Schoffstall, . . . 905 A.2d 482, 485 n.3 

(Pa. 2006) (individuals have “privacy interest in information 

contained in federal tax returns. . . . Such information is made 

confidential per federal statute”); J.S. [v. Whetzel, 860 A.2d 

1112, 1117 (Pa. Super. 2004)] (defense witness’s privacy 

interest in information on federal 1099 tax forms raised 

“sufficiently important public policy concern” for purposes of 

collateral order doctrine).

Further, [the defendants] have a privacy interest in their bank 

records and net worth documents. Merithew v. Valentukonis, 

. . . 869 A.2d 1040, 1043 (Pa. Super. 2005), abrogated on other 

grounds, Rae v. Pa. Funeral Dirs. Ass’n, . . . 977 A.2d 1121 

(Pa. 2009) (discovery order compelling defendant to disclosure 
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her complete financial worth implicated her privacy interest in her 

financial information and raised sufficiently important public policy 

concern to satisfy second prong of collateral order doctrine).

Cabot Oil, 241 A.3d at 1197 (emphasis and paragraph break added).

However, not only did the discovery order in Cabot Oil pertain to 

individuals’ tax returns and financial information, the decisions cited by the 

Cabot Oil panel likewise concerned the financial information of individuals. 

Cooper, 905 A.2d at 485 (discovery of financial records of a non-party expert 

medical witness); Merithew, 869 A.2d at 1042 (interrogatories of 

plaintiff/individual concerning her financial worth); J.S., 860 A.2d at 1117

(discovery of non-party expert medical witness’ 1099 tax forms).

Appellant cites no authority in support of the position implicit, but not 

outright articulated, in its argument — that for Rule 313 purposes, as a limited 

partnership, it enjoys the same privacy interest extended to individuals. As 

the trial court recognizes, some of the discovery information will necessarily 

reveal some individuals’ names, for example, information concerning 

“bonuses” and “the name of the person(s) authorizing the distributions.” See

Trial Ct. Op. at 5. However, directing Appellant, a limited partnership, to 

disclose this specific information is distinguishable from the facts presented in 

the cases cited above, which directed particular individuals to provide, 

broadly, years of tax returns and other documents showing their entire 

“financial worth.” See Cooper, 905 A.2d at 485; Cabot Oil, 241 A.3d at 

1197; Merithew, 869 A.2d at 1042; J.S., 860 A.2d at 1117.
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Accordingly, we conclude Appellant has not established the second 

prong of the collateral order doctrine — that the underlying discovery order 

“involves a right too important to be denied review.” See Pa.R.A.P. 313(b); 

Cabot Oil, 241 A.3d at 1196–97. Thus, we are constrained to quash this 

appeal. See Cabot Oil, 241 A.3d at 1196–97. We need not review whether 

the other two prongs of the collateral-order test are met. See Pa.R.A.P. 

313(b); Cabot Oil, 241 A.3d at 1196–97.

9

Appeal quashed.

Judge Dubow joins the Memorandum.

Judge Stabile Concurs in the Result.

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9 The trial court further suggests Appellant has waived its argument— that the 

discovery order would require “disclosure of private financial information of 

non-defendants in this litigation” —for failure to include it in its objections to 

the Discovery Master’s recommendation. Trial Ct. Op. at 7. Appellant 

acknowledges the trial court’s discussion of waiver, but does not cite, in 

refutation, the place in the certified record where it preserved this particular

issue. See Appellant’s Brief at 23-24 & n.9.

In any event, to the extent Appellant, a limited partnership, argues the 

discovery order infringed upon the privacy rights of individuals, we remind 

Appellant’s counsel that a party “lack[s] standing to assert the alleged 

deprivation of another’s rights.” See Cabot Oil, 241 A.3d at 1196 (“Under 

the Rules of Civil Procedure, [the a]ppellants’ spouses or law partners could 

have moved to intervene in this case to assert and protect their rights.”). See 

also Pa.R.C.P. 2327(4) (“At any time during the pendency of an action, a 

person not a party thereto shall be permitted to intervene . . . if the 

determination of such action may affect any legally enforceable interest of 

such person whether or not such person may be bound by a judgment in the 

action.”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/09/2022