## Facts

- Named plaintiffs in consolidated mass-tort actions sued the manufacturer of implantable infusion pumps, Medtronic, Inc. (captioned as Medtronics, Inc.).
- The litigation concerned alleged malfunctions in two pump models: 8615 and 8611.
- Plaintiffs alleged their pumps stopped working when they were administered Demerol (meperidine) for pain control.
- Plaintiffs pursued class-action certification for a proposed nationwide class involving people whose implanted Medtronic pumps allegedly failed when Demerol was administered.
- To prepare their class-certification showing, plaintiffs served discovery seeking information about pump failures and related incidents on a nationwide basis.
- Medtronic objected that the discovery was overly broad and sought information about a class that could never be certified.
- Medtronic argued that any certifiable class would have to be limited to people sharing the named plaintiffs’ alleged characteristics—specifically, Louisiana residents implanted with a model 8615 or 8611 pump that failed when Demerol was administered and then had to be surgically removed.
- Plaintiffs moved to compel discovery consistent with their nationwide class theory.

## Issues

1. In a putative nationwide class action, may plaintiffs obtain pre-certification discovery directed to their proposed nationwide class definition, even if the defendant argues such a class cannot be certified?
2. May a defendant restrict pre-certification class discovery by insisting discovery be limited to a narrower, defendant-defined class mirroring the named plaintiffs’ alleged characteristics?
3. How should the court apply Rule 26’s relevance and burden limits when discovery is sought to develop the record for Rule 23 class-certification issues?

## Decision

- The court ruled on plaintiffs’ motion to compel class-related discovery sought in support of proposed nationwide class certification.
- The court declined to confine discovery solely to the narrow Louisiana-only group proposed by Medtronic and permitted broader discovery aligned with plaintiffs’ nationwide class theory, subject to reasonable limits for burden.

## Legal Principles

- Rule 26 permits discovery of nonprivileged matter that is relevant to the claims and defenses and proportional to the needs of the case.
- In putative class actions, pre-certification discovery may address Rule 23 questions, including the contours of the proposed class, common questions, and whether class treatment is workable.
- A defendant’s assertion that a proposed class is not certifiable does not automatically bar discovery aimed at testing (and proving or disproving) plaintiffs’ broader class definition.
- Trial courts have discretion to manage class-related discovery by ordering production while setting reasonable scope limits to address burden and proportionality.

## Conclusion

In Borskey v. Medtronics, Inc., the court addressed a pre-certification discovery dispute in consolidated litigation over alleged failures of Medtronic infusion pumps when patients were administered Demerol, and it permitted broader class-related discovery consistent with plaintiffs’ proposed nationwide class rather than limiting discovery to Medtronic’s narrower, Louisiana-only view of any possible class.


Borskey v. Medtronics, Inc., 1998 WL 122602 (1998)