Court quashes American Medical Systems subpoenas in pelvic mesh case, to mull sanctions

The federal court overseeing the multidistrict litigation over pelvic mesh products made by American Medical Systems, the erstwhile women’s health business once owned by Endo International (NSDQ:ENDP), is mulling sanctions on the company after quashing a 2nd round of subpoenas sent to an outside witness.

Endo, which acquired AMS in 2011 for $2.9 billion, in 2015 dealt the men’s urology portion of the business to Boston Scientific (NYSE:BSX) for $1.65 billion. In March of this year the company shut down the Astora women’s health business “as it did not align with the company’s strategic direction and to reduce the additional exposure to mesh-related product liability,” according to the filing.

Although it’s inked deals worth a collective $2.8 billion to settle some 49,000 product liability lawsuits filed over its pelvic mesh products for treating pelvic organ prolapse and stress urinary incontinence, there are still an estimated 8,000 suits still pending, according to Endo’s most recent quarterly update. The company has set aside some $1.20 billion to cover the pelvic mesh cases, it said in the filing.

In the pelvic mesh MDL proceeding in the U.S. District Court for Southern West Virginia, AMS deposed a pair of outside witnesses under a protective order limiting its scope and duration to 2 hours. After gynecologist Dr. Christopher Walker and his CFO, Chelly Exum, were deposed, AMS sent a 2nd round of subpoenas asking for more from Exum. The outside witnesses moved to have the subpoeanas quashed, arguing that they went beyond the scope of the original protective order, and asked for sanctions to cover legal expenses incurred in fighting them.

Magistrate Judge Cheryl Eifert yesterday agreed with Walker and Exum, quashing the subpoenas and ordering both parties to submit their respective arguments on sanctions.

“In issuing these subpoenas, AMS either vastly misinterprets the court’s prior order, or deliberately seeks to violate it,” Eifert wrote, according to court documents. “The order was unambiguous. AMS was permitted to take 1 deposition of Ms. Exum, lasting no longer than 2 hours, concerning topics of inquiry specifically outlined in the order.

“Furthermore, not only is AMS’s subpoena for Ms. Exum’s deposition a violation of the court’s protective order, as described above, but it likewise violates the MDL’s deposition protocol and the Federal Rules of Civil Procedure,” she wrote. “As stated, the subpoena for deposition violates the protective order by demanding a 2nd deposition of Ms. Exum and, for that reason alone, should be quashed. However, the supplemental deposition questions tendered by AMS provide a separate basis for quashal, as they introduce topics in addition to the clearly-defined areas of inquiry permitted by the protective order. Considering that the order incorporated the topics proposed by AMS, it is hard-pressed to add new subject matter now. Indeed, the purpose of the protective order was to allow 1, limited deposition of Ms. Exum; it was not a springboard for multiple depositions and expanding areas of inquiry.”

Eifert gave Walker and Eifert 14 days to submit their argument for sanctions covering their legal expenses, granted another 14 days after that for AMS to rebut the claim and gave the outside witnesses 7 more days to respond to the AMS rebuttal, according to court filings.

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