                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-27-1996

In Re: Orthopedic Bone
Precedential or Non-Precedential:

Docket 96-1131,96-1132




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"In Re: Orthopedic Bone" (1996). 1996 Decisions. Paper 91.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/91


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                                          FOR PUBLICATION

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ____________

                      Nos. 96-1131 & 96-1132
                           ____________



    IN RE: ORTHOPEDIC BONE SCREW PRODUCTS LIABILITY LITIGATION

                               Scoliosis Research Society
                               and Steven M. Mardjetko, M.D.,
                                     Petitioners at No. 96-1131
                                     Appellants at No. 96-1132


          ______________________________________________

           Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                  D.C. Civil Action No. MDL-1014
                       ___________________


                      Argued August 8, 1996

          Before: MANSMANN and SCIRICA, Circuit Judges
and DIAMOND, District Judge

                         ________________

                        ORDER OF DISMISSAL
                         ________________


         On January 2, 1996, the Scoliosis Research Society
("SRS") and Steven M. Mardjetko, M.D., filed a motion seeking to
stay public disclosure by plaintiffs of data underlying a study
of the safety and efficacy of bone screws, entitled "A Historical
Cohort Study of Pedicle Screw Fixation in Thoracic, Lumbar and
Sacral Spinal Fusion." They asserted the data was privileged
under the Illinois Medical Studies Act, 5 Ill. Con. Stat. 5/8-
2101 et seq.
         In a memorandum dated February 14, 1996, the district
court denied the motion. First, the district court found the
Illinois Medical Studies Act inapplicable under Fed R. Evid. 501
because it believed "there [was] a pervasive federal aspect to
the litigation," mandating application of the federal law of
privilege. Memorandum and Order, In re: Orthopedic Bone Screw
Products Liability Litigation, MDL 1014 at 4 (E.D. Pa. February
14, 1996) (Pretrial Order No. 252). Second, the district court
found that Illinois law did not govern under Klaxon v. Stentor
Electric Mfg. Co., 313 U.S. 487 (1941). Finally, the court
reaffirmed its prior ruling that Cohort Study data could be used
in public comments to the FDA under Pansy v. Borough of
Stroudsburg, 23 F.3d 772 (3d Cir. 1994). In a separate
memorandum, the district court also denied specific objections of
various defendants and intervenors to the disclosure of Cohort
Study data in public comments to the FDA. Memorandum and Order,
In re: Orthopedic Bone Screw Products Liability Litigation, MDL
1014 (E.D. Pa. February 14, 1996) (Pretrial Order No. 254).
         On February 20, 1996, SRS and Dr. Mardjetko filed this
appeal and petition for a Writ of Mandamus relating to Pretrial
Orders No. 252 and 254. Since that time, plaintiffs have filed
public comments with the FDA containing Cohort Study data.
Because that disclosure cannot now be undone, we will dismiss the
appeal and petition as moot. We will also vacate Pretrial Orders
No. 252 and 254 because SRS and Dr. Mardjetko have, through no
fault of their own, been deprived of a review on the merits of
the district court's adverse rulings and ought not to be forced
to acquiesce in them. U.S. Bancorp Mortgage Company v. Bonner
Mall Partnership, 115 S. Ct. 386, 391-92 (1994). Our order does
not affect any other pretrial order.
         Should the SRS and Dr. Mardjetko raise claims of
privilege again before the district court, we note that the
Supreme Court's recent decision in Medtronic, Inc. v. Lohr, No.
95-886, 64 U.S.L.W. 4625 (June 26, 1996), may bear upon whether
the Illinois Medical Studies Act applies to Cohort Study data
under Fed. R. Evid. 501. Of course we express no opinion on the
matter and leave this question to the district court in the first
instance.
         Each party to bear its own costs.

                               BY THE COURT,




                                     /s/ Anthony J. Scirica
                                       Circuit Judge

Dated: August 27, 1996
