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Biomet10/28/2005
In this products liability and personal injury suit, the defendants, Biomet, Inc. and one of its distributors, Mike Trieste, petition for a writ of certiorari to quash an order granting the motion of the plaintiffs, Norman and Karen Fleury, to compel discovery. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(A). See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987); Ameritrust Ins. Corp. v. O'Donnell Landscapes, Inc., 899 So. 2d 1205 (Fla. 2d DCA 2005). Biomet and Trieste contend that the order compelling discovery is overbroad and burdensome. We reject the contention that the order is overbroad but hold that discovery should be conducted using a modified, less burdensome procedure. We grant the petition, quash the order of the trial court, and remand for entry of an amended order.
Biomet is a manufacturer of orthopedic medical devices. Among its thousands of products are replacement knee joints and other products such as artificial hips, shoulders, wrists, and ankles. It manufactured the replacement knee joint that was implanted in Mr. Fleury in December 1994. The specific medical device at issue is a Biomet AGC 2000 knee implant containing a direct compression molded ultra high molecular weight polyethylene [UHMWPE] that forms the weight-bearing surface at the top of the tibial component of the joint. Mr. Fleury alleges in his lawsuit that well before the ten-to-fifteen-year normal, intended, and anticipated useful life of his knee prosthesis, it partially decomposed and disintegrated, totally failed in its operation, and caused him to undergo a second knee replacement surgery in October 1999. He theorizes that his prosthesis, formed by using molded rather than machined or sculpted UHMWPE, failed due to oxidation as a result of the gamma ray sterilization and packaging procedure that was done in the presence of oxygen rather than in the presence of an inert gas such as argon. He also claims that the fact that his prosthesis sat in Biomet's inventory for several years before it was sold to him contributed to the oxidation and its premature failure.
When Mr. Fleury underwent the second surgery in October 1999, the surgeon did not direct that the original prosthesis be preserved; it was therefore discarded in accordance with normal medical procedure without anyone having an opportunity to examine it in detail to determine the potential cause of its failure. This spoliation of evidence resulted in the prior appearance of the Fleurys' lawsuit before this court. Fleury v. Biomet, Inc., 865 So. 2d 537 (Fla. 2d DCA 2004) (reversing summary judgment and remanding for further proceedings). Because we reversed for further proceedings, we did not reach the discovery issue that the Fleurys had also raised in that appeal. Before they suffered summary judgment, the trial court had refused to compel compliance with the Fleurys' demand for discovery of complaints or claims of failure of Biomet's prostheses. We could not determine from the record at that time the trial court's basis for denying the Fleurys' motion to compel discovery. Instead, we affirmed the trial court's order without prejudice to the Fleurys' right to renew their motion to compel on remand, thus giving the trial court an opportunity to determine whether the discovery demand is overbroad and, if so, to limit it in accordance with American Medical Systems, Inc. v. Osborne, 651 So. 2d 209 (Fla. 2d DCA 1995). Fleury, 865 So. 2d at 540.
On remand, the Fleurys renewed their motion to compel discovery and sought information relating to all claims involving polyethylene components of all Biomet products manufactured between 1990 and 1997, regardless of whether the claim concerned a product subs
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