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In re Human Tissue Products Liability Litigation

December 12, 2008


The opinion of the court was delivered by: Hon. William J. Martini

MDL No. 1763


This matter comes before the Court by wayof Plaintiffs' motion to compel the production of certain privileged documents. The Court has considered the submissions made in support of and in opposition to the instant motion. No oral argument was heard. Fed. R. Civ. P. 78. Based on the reasons that follow, Plaintiffs' motion is granted in part and denied in part.


This action arises from a criminal enterprise by Biomedical Tissue Services, Ltd. ("BTS") and its principal Michael Mastromarino ("Mastromarino") to harvest tissue from human corpses without obtaining proper consents and following appropriate regulations. See In re Human Tissue Prods. Liab. Litig., No. 06-135, 2008 WL 4665765, at *1 (D.N.J. Oct. 22, 2008). Plaintiffs in this multidistrict litigation ("MDL") include recipients of processed tissue supplied by BTS (collectively referred to as "recipient cases"), and relatives of the deceased donors (collectively referred to as "family cases"). Defendants include the "principals in the criminal operation, the funeral homes that provided BTS access to the corpses, the companies who processed tissue recovered from cadavers by BTS into various medical products, the distributors of the processed tissue products, and the hospitals and medical personnel who transplanted the processed tissue product." Id.

There are currently six family cases pending in this MDL. Four were originally filed in state or federal court in New York.*fn1 One was originally filed in the District of New Jersey,*fn2 and one was filed in the Eastern District of Pennsylvania.*fn3 There are also approximately fifty-one (51) family cases pending in state courts in New York, New Jersey and Pennsylvania.

Defendant RTI ("RTI" or "Defendant") filed a motion for summary judgment in January 2007. See CM/ECF Docket Entry Nos. 209 (incorporating by reference brief filed by co-defendant LifeCell); 213. At that time, Defendant argued that the claims asserted by Plaintiffs in Count Six of the Amended Complaint should be dismissed inasmuch as they are "barred by the good faith immunity defense provided by New York's version of the Uniform Anatomical Gift Act." CM/ECF Docket Entry No. 209. In particular, Defendant argued that "a party that relies on facially valid documentation of consent to donation, provided by another party, is immune from suits brought by the kin of the donor alleging emotional distress and other common law torts premised on lack of proper consent to the donation." By way of Opinion and Order dated November 13, 2007, the Honorable William J. Martini, U.S.D.J., denied Defendant's motion for summary judgment on the basis that a determination on the issue of good faith would be premature given that discovery had not commenced on the issue of whether the Tissue Bank Defendants were aware that the consent forms were fabricated.*fn4 See In re Human Tissue Prods. Liab. Litig., No. 06-135, 2007 WL 3510752, at *5 (D.N.J. Nov. 13, 2007). In doing so, the Court explained:

To accept the Tissue Bank Defendants' argument, that summary judgment could be granted based solely on the consent forms without examining whether the Tissue Bank Defendants knew that the consent forms were invalid, is to suggest that the Gift Act insulates potentially complicit tissue banks as long as they have received a completed consent form, even if there is evidence that the tissue banks knew, or had constructive knowledge, that the forms had been falsified. Such an interpretation would contravene the clear language of the Gift Act.


Discovery on the narrow issue of good faith immunity has been open since December 2007.*fn5 See CM/ECF Docket Entry No. 545. Currently before the Court is a motion to compel RTI to produce certain documents listed in its privilege log. Plaintiffs argue, generally, that RTI has waived the attorney-client and/or attorney work product privilege by raising a defense regarding its own good faith. In the alternative, Plaintiffs request that the Court conduct an in camera review of said documents to determine whether they are, in fact, privileged and, therefore, whether they should be produced. RTI opposes Plaintiffs' motion on the basis that all documents listed on RTI's privilege log are protected by the attorney-client and/or work product privileges or are protected from disclosure because they are related to a grand jury investigation.

This motion was originally filed by Plaintiffs on October 9, 2008 in New York state court. Given the implications of Plaintiffs' motion to compel on this MDL, this Court has been asked to engage in a coordinated resolution of Plaintiffs' motion.*fn6 As a result, Plaintiffs' motion was filed in this action on October 31, 2008 and is now pending before this Court. See CM/ECF Docket Entry No. 698. At issue are approximately 366 documents,*fn7 which have been subdivided into nine categories by defense counsel. In the interest of judicial efficiency, this Court has directed the parties to submit proposed samples from each of the nine categories of documents in dispute. Given the quantity of documents involved and the fact that the parties have argued purely legal issues with respect to categories of documents, the Court concludes that it is appropriate to decide the motion as presented.


I. Choice of Law

When a case is based on federal diversity jurisdiction, courts are to decide issues of attorney-client privilege based on state law. See In re Ford Motor Corp., 110 F.3d 954, 965-66 (3d Cir. 1997).*fn8 A federal district court exercising jurisdiction on the basis of diversity generally applies the law of the forum state. See Chem. Leaman Tank Lines, Inc. v. Aetna Casualty and Surety Co., 89 F.3d 976, 983 (3d Cir.1996) (stating that "[a]s a federal court sitting in diversity, we must apply the substantive law of New Jersey."). However, in the context of a multidistrict litigation such as this one, the law of the transferor court applies to cases transferred here. See, e.g., Van Dusen v. Barrack, 376 U.S. 612, 633-634 (1964); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993); In re Sunrise Sec. Litig., 698 F. Supp. 1256, 1261 (E.D. Pa. 1988).

This motion was originally filed in New York state court. The parties' original briefs rely almost exclusively on New York law. However, this motion will have implications on all the family cases pending in this MDL, which include cases transferred from New York, Pennsylvania and those cases which were originally brought in New Jersey. Moreover, this Court has been asked to issue a global decision on this motion. It is, therefore, unclear, whether the law of New York, Pennsylvania, New Jersey (or Florida) should be applied.*fn9 The Court need not reach this potentially thorny issue because the law as to the attorney-client privilege in New York does not differ in any material way from that in New Jersey, Pennsylvania or Florida for purposes of the instant motion. See, e.g., In re Ford Motor Corp., 110 F.3d at 965-66 (noting that "the law as to attorney-client privilege in Pennsylvania does not differ in any significant way from that in Michigan. The elements of the attorney-client privilege are well-known and are not, in any material respect, disputed here. We need not, therefore, dwell on them, except to note their basic contours in Pennsylvania and Michigan."). Accordingly, for purposes of efficiency, the Court will rely predominately on New York law in addressing Plaintiffs' motion. See generally Spectrum Sys. Intern. Corp. v. Chem. Bank, 78 N.Y.2d 371, 377, 581 N.E.2d 1055, 1060 (1991) (referring to New York's attorney-client privilege statute as a "mere re-enactment of the common-law rule"). Where helpful, the Court will also turn to the laws of New Jersey, Pennsylvania and Florida in addressing the more discrete issues raised by the parties.

II. Privilege Law Generally

The attorney-client privilege protects confidential communications between a client and an attorney made in the course of a professional relationship. See Spectrum Sys., 78 N.Y.2d at 377 (citing N.Y.C.P.L.R. § 4503(a)). "The communication itself must be primarily or predominantly of a legal character." Id. The attorney-client privilege is limited to communications -- not underlying facts. See id. at 377; see also Upjohn Co. v. United States, 449 U.S. 383, 394 (1981) ("The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney . . . ."). The person asserting the privilege with respect to a particular communication bears the burden of proving that it applies. See, e.g., ...

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