UNITED STATES OF AMERICA ex rel. LAURIE SIMPSON, Plaintiff, v. BAYER CORPORATION, et al., Defendants Civil Action No. 05-3895 (JLL)(JAD) United States District Court, D. New Jersey Signed April 16, 2020 Counsel DAVID ANDREW BOCIAN, JOSEPH H. MELTZER, MICHELLE M. NEWCOMER, RICHARD A RUSSO, Jr., TYLER STEPHEN GRADEN, KESSLER TOPAZ MELTZER & CHECK LLP, RADNOR, PA, JAMES E. CECCHI, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C., ROSELAND, NJ, for Plaintiffs Cavanaugh, Dennis M. (Ret.), Special Master ORDER AND OPINION OF THE SPECIAL MASTER *1 This matter comes before the Special Master on a letter motion submitted by defendant Bayer Corporation (“Bayer”) in support of a motion to compel Plaintiff-Realtor (“Realtor”) to provide complete responses to Request Nos. 1-14, 18-19, and 22 of Bayer's Second Requests for Production (“RFP”) and Interrogatories 1-5 of Bayer's First Requests for Interrogatories. After considering the submissions of the parties, based upon the following, it is the opinion of the Special Master that the motion is DENIED. DISCUSSION I. Background In February 2018, Bayer served its Second Request for Production of Documents on Realtor. Bayer asked Realtor to produce each claim for Trasylol or Avelox that she contended was false or fraudulent. In April 2018, Bayer served its First Request for Interrogatories. The Requests asked Realtor to identify the claims for Trasylol and Avelox that were in her view false or fraudulent. Realtor objected to these interrogatories on multiple grounds, including on the basis that they constituted premature contention interrogatories requiring Realtor to apply the law to the facts and to support a legal conclusion based on an incomplete discovery record. On January 18, 2019, Bayer moved to compel Realtor to produce documents responsive to its contention document requests. On March 5, 2019, the Special Master ordered Realtor to respond to Bayer's contention document requests. On April 4, 2019, Realtor produced all remaining documents in her possession identified as responsive to the document requests that were subject of the Order. On April 26, 2019, Realtor also produced electronic claims data for inpatient surgeries from three hospitals produced by the Centers for Medicare and Medicaid Services (“CMS”) in response to a subpoena. Realtor also compiled a chart identifying the third-party productions received and produced by Bates range. II. Arguments of the Parties Bayer argues that for almost two years, it has asked Realtor to produce and identify the specific claims for Trasylol or Avelox that she contends are false. Bayer argues that despite the Special Master's prior order requiring Realtor to produce these documents by April 4, 2019, Realtor still has produced nothing. Bayer argues that Realtor has only proceeded to: (1) recite past hospital use data that she had already produced; (2) produce limited new use data from three hospitals; (3) state that Realtor had CMS claims data in her possession that was inaccessible due to technical issues; and (4) claim that with this production Realtor had produced all non-privileged documents in her possession responsive to the Requests at issue. Bayer argues this did not comply with the Special Master's Order because hospital use information is not claims information. Bayer argues that at the same time, Realtor refuses to identify allegedly false claims for Trasylol or Avelox in response to Requests 1-5 of Bayer's First Request for Interrogatories. According to Bayer, Realtor has repeatedly refused to provide a response, stating that she will supplement her response within a reasonable time after the close of fact discovery. Bayer argues that Realtor's continued foot dragging on these issues does not serve to advance this litigation. Bayer argues that Realtor's position would prevent Bayer from taking any discovery once it finally learns which claims—if any—are at issue and would prevent it from putting together a defense. *2 Realtor responds by asserting that she has already produced all the claims data in her possession responsive to the contention document requests that were subject of the Special Master's March 5 Order. Realtor argues that her productions included not only hospital billing business records that evidence submissions and reimbursement of inpatient Medicare and Medicaid claims for surgeries involving Trasylol, but also electronic claims data and claim forms for Trasylol surgeries and Avelox prescriptions submitted to Medicare and Medicaid. Realtor argues that Bayer does nothing more than rehash arguments from its failed motion for partial summary judgment by claiming that Realtor has merely produced documents or data reflecting hospital usage of Trasylol, rather than Trasylol claims information. However, Realtor argues that Judge Linares has already held that a claim for a surgery in which Trasylol was administered constitutes a claim for Trasylol, and the hospital records of Trasylol surgeries billed to Medicare may ultimately be used to prove the existence of claims for Trasylol. Realtor argues that its fulsome production of documents reflecting hospital usage of Trasylol is thus plainly responsive to Bayer's requests. Realtor further argues that Bayer's request to order Realtor to respond to contention interrogatories by specifying each of the claims Realtor will argue was false at trial, should be rejected as premature. Realtor argues that document discovery has not yet concluded, fact depositions have not been taken, and Realtor has not yet received the vast majority of CMS claims data responsive to its subpoena—the production of which has been delayed by Bayer. Realtor argues that all that is required at this stage of discovery is simply the production of the claims related documents themselves—an obligation that Realtor has already fulfilled. Realtor asserts that it is well established in this District that responses to contention interrogatories should be deferred until the end of the discovery period. Realtor argues that contention interrogatories are more appropriate after a substantial amount of discovery has been conducted. Here, Realtor argues that discovery is not substantially complete, principally due to Bayer's own intransigence. In response, Bayer agrees there is no further relief it can seek from the Special Master on document requests 1-14, 18-19, and 22 of Bayer's Second Requests for Production as Realtor represents it has produced all documents in her possession. However, Bayer argues that Realtor should be ordered to respond to Requests 1-5 of Bayer's First Request for Interrogatories. Bayer argues that the Special Master has already rejected arguments that “contention requests” are premature. Bayer argues that just like responses to contention document requests, responses to contention interrogatories will clarify the issues in the case and narrow the scope of the dispute. Bayer argues that this case is not in the early stages of discovery. Bayer argues that discovery has been ongoing for years, and Bayer has produced millions of pages of documents at great expense. Bayer argues that Realtor's alleged need for more time to obtain claims from CMS is meritless because CMS has already stated that it has no responsive claims. Bayer argues that even if Realtor were to obtain additional documents from CMS and even if those documents did reflect allegedly false claims, Realtor could amend her interrogatory responses with this supplemental information. Bayer argues that the possibility that additional information will be uncovered in the future is no basis for refusing to respond now. Bayer further asserts that allowing Realtor to refuse to respond until “following the close of fact discovery” would severely prejudice Bayer, which needs to know which claims if any are allegedly false in order to develop its defense. Bayer argues that the discovery rules apply precisely to prevent the type of trial by surprise that Realtor seeks. Realtor retorts by arguing that CMS has never stated that it has no responsive claims data. Realtor maintains that CMS has already produced numerous claims for payment for both Trasylol and Avelox, including claims records maintained by CMS for surgeries in which Trasylol was administered and state Medicaid programs for Avelox prescriptions. Realtor further argues that Bayer's continued refused to provide its data request parameters to CMS has frustrated the production of the very claims data that Bayer complains Realtor has failed to produce. III. Opinion *3 The Special Master will not address Bayer's request to compel document requests 1-14, 18-19, and 22 of Bayer's Second Requests for Production as Realtor has represented it has produced all documents in her possession. With respect to Interrogatory Requests 1-5, as a general matter contention interrogatories are an appropriate discovery tool. See, e.g., Nestle Foods Corp. v. Aetna Cas. and Sur. Co., 135 F.R.D. 101, 110 (D.N.J. 1990) (“[A]n interrogatory may properly inquire into a party's contentions in the suit”); Leski, Inc. v. Federal Insurance Co., 129 F.R.D. 99, 107 (D.N.J. 1989)(“[I]nterrogatories seeking to elicit what a party's contentions will be at the time of trial are not objectionable, as responses to these questions will help narrow the issues to be tried”); see also Conopco, Inc. v. Warner-Lambert Co., No. 99-101 (KSH), 2000 WL 342872 at *4-5 (D.N.J. Jan 26, 2000) (“Contention interrogatories are permissible [ ]”). Nevertheless, the Court is afforded “considerable discretion in deciding when, if ever, a party must answer contention interrogatories.” Nestle Foods, 135 F.R.D. at 110; see also Gerald Chamales Corp. v. Oki Data Americas, Inc., 247 F.R.D.453, 454 (D.N.J. 2007)(“[M]agistrate Judges have broad discretion to manage their docket and to decide discovery issues, including whether to stay discovery [ ]”); Forrest v. Corzine, 757 F. Supp. 2d 473, 477 (D.N.J. 2010)(“Magistrate Judges are given wide discretion to manage cases and to limit discovery in appropriate circumstances”). The Special Master is guided by the following: Contention interrogatories are permissible to ask a party to state what it contends; to state whether it makes a specified contention; to state all the facts upon which it bases a contention; to take a position, and explain or defend that position, with respect to how the law applies to facts; or to state the legal or theoretical basis for a contention. A court may defer such interrogatories until the end of discovery. The party serving the interrogatories must prove how discovery is benefited by an earlier answer. It must show that early answers will contribute meaningfully to clarifying the issues in the case, narrowing the scope of the dispute, or setting up early settlement discussions, or that such answers are likely to expose a substantial basis for a motion under Rule 11 or Rule 56. However, if the Court forces plaintiff to respond, it may have to set forth theories of its case that have not yet been developed. Conopco, Inc. v. Warner-Lambert Co., 2000 WL 342872, at *4 (D.N.J. Jan. 26, 2000) (quoting B. Braun Med. Inc. v. Abbott Lab., 155 F.R.D. 525 (E.D. Pa. 1994)) (internal quotation omitted); see also Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 110-11 (D.N.J. 1990) (concluding that contention interrogatories were premature where discovery was in its infancy and noting that judicial economy as well as efficiency for the litigants weighed in favor of deferring contention interrogatories until after substantial amount of discovery was conducted). Despite the advanced age of this litigation, discovery has not progressed to a stage where contention interrogatories are appropriate. As Realtor has pointed out, the parties are currently engaged in document discovery and no depositions have been conducted to date. While the Special Master has previously found that responses to contention document requests could benefit discovery and meaningfully clarify issues in the case at this time, the Special Master does not believe the same holds true for contention interrogatories. See United States ex rel. Laurie Simpson v. Bayer Corp., No. 05-3895, Dkt. No. 342. Given that substantial discovery remains outstanding, including remining document discovery as well as deposition discovery, the Special Master believes that responses to contention interrogatories will do more to advance litigation when the parties are in possession of facts and knowledge obtained from a meaningful amount of document discovery and witness testimony. If the Special Master forces Realtor to respond to early contention interrogatories, Realtor may have to set forth theories of her case that have not yet been developed. See Novanta Corp., v. Iradion Laser, Inc., No. CV 15-1033-S LR-SRF, 2016 WL 4987110, at *7 (D. Del. Sept. 16, 2016). Here, judicial economy as well as efficiency for the litigants weighs in favor of deferring contention interrogatories until after a substantial amount of discovery has been conducted. See Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 110 (D.N.J. 1990). However, the Special Master will caution Realtor that she may not wait until after the close of discovery to respond to these contention interrogatories. Contention interrogatories should be responded to after a substantial amount of discovery has been conducted. The parties are guided accordingly.