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Other Statutes: False Claims Act | Massachusetts
Status Conference 1 - Terminate Hearings
Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Ex parte hearing held on 8/7/2026 by video. The court held an ex parte hearing with Attorney Jewell for the Defendants John & Johnson and DePuy Synthes Sales, Inc., at which the court asked Attorney Jewell to explain why certain portions of documents provided to the court for ex parte review are privileged. The court overruled some of counsel’s objections and ordered that certain discovery be provided to the Plaintiff. Within one week of this Order, Attorney Jewell will provide the Plaintiff with the salesforce document, unredacted; with portions of the 8-page investigation report dated July 2, 2020, that pertain to an allegation concerning Mr. Capobianco; and with a redacted email dated December 3, 2019, that explains the reason for Mr. Capobianco’s termination. Attorney Jewell shall file said documents on the docket under seal. (Court Reporter: Digital Recording.) To order a copy of this Digital Recording, please go to https://forms.mad.uscourts.gov/Audio.html. For a transcript of this proceeding, contact mad_transcripts@mad.uscourts.gov.(Attorneys present: Jessica Schachter Jewell) (LTV)
Order on Motion for Discovery
Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered. Regarding 260 , the Plaintiff’s Motion for Discovery for Additional Depositions, the court grants the motion in part and denies the motion in part.The Plaintiff asks to take four depositions in addition to the ten he has already taken or noticed. The court allows the motion insofar as the Plaintiff may take the depositions of Matthew Capobianco and Tony Tannoury, M.D. Dr. Tannoury previously could not be deposed because this court found that he had a Fifth Amendment privilege concerning the questions that might be put to him 159 . The court also previously found that as Mr. Capobianco had been indicted in a criminal case that substantially overlapped with the Plaintiff’s allegations in this civil matter, his Fifth Amendment privilege would prevent him, too, from answering questions 163 . Now, the criminal case against Mr. Capobianco has been dismissed and as the Plaintiff points out, the statute of limitations appears to have run on any criminal conduct either witness might have engaged in in connection with this case. Mr. Capobianco’s testimony is relevant given his involvement in the three alleged sterilization incidents at the Boston Medical Center that the Plaintiff reported to J&J’s Corporate Internal Audit Department and later to the government, and Dr. Tannoury’s testimony is relevant as he allegedly accepted “kickbacks” that the Defendants provided to him, which the Plaintiff also reported to the government. The conduct of these witnesses is obviously central to the Plaintiff’s allegations. Chief Judge Casper previously found that although this case concerns claims of employment retaliation, the Plaintiff claims that he was retaliated against by the Defendants for reporting the alleged misconduct, so information about the misconduct “necessarily provide[s] relevant factual background.” 105 at 29. Both witnesses have extensive knowledge concerning this “relevant factual background.” The Defendants’ argument that the Plaintiff has not made “the particularized, proportionality-based showing” necessary to justify the additional depositions in this “narrowed employment-retaliation case” is unpersuasive, as these witnesses are few in number, it is clear why Plaintiff could not depose them earlier, their testimony is relevant and necessary to understanding the background facts in the case, and the expense and burden of taking two depositions does not outweigh the likely benefit of doing so. There is no indication here that the Plaintiff is seeking to take these depositions because he used his other depositions unwisely. In short, the court finds that the Plaintiff’s request is consistent with the requirements of Fed. Rule Civ. P. 26(b)(1) and (2). The court denies the Plaintiff’s request to take a deposition of an unidentified person whose name might come up in future depositions, and also denies the request to depose Patrick Gannon, a current employee of the Defendants, as the information sought from Mr. Gannon can be gathered from other sources and the Plaintiff has not offered sufficient justification for the late request to depose him. (LTV)
The Plaintiff asks to take four depositions in addition to the ten he has already taken or noticed. The court allows the motion insofar as the Plaintiff may take the depositions of Matthew Capobianco and Tony Tannoury, M.D. Dr. Tannoury previously could not be deposed because this court found that he had a Fifth Amendment privilege concerning the questions that might be put to him 159 . The court also previously found that as Mr. Capobianco had been indicted in a criminal case that substantially overlapped with the Plaintiff’s allegations in this civil matter, his Fifth Amendment privilege would prevent him, too, from answering questions 163 . Now, the criminal case against Mr. Capobianco has been dismissed and as the Plaintiff points out, the statute of limitations appears to have run on any criminal conduct either witness might have engaged in in connection with this case. Mr. Capobianco’s testimony is relevant given his involvement in the three alleged sterilization incidents at the Boston Medical Center that the Plaintiff reported to J&J’s Corporate Internal Audit Department and later to the government, and Dr. Tannoury’s testimony is relevant as he allegedly accepted “kickbacks” that the Defendants provided to him, which the Plaintiff also reported to the government. The conduct of these witnesses is obviously central to the Plaintiff’s allegations. Chief Judge Casper previously found that although this case concerns claims of employment retaliation, the Plaintiff claims that he was retaliated against by the Defendants for reporting the alleged misconduct, so information about the misconduct “necessarily provide[s] relevant factual background.” 105 at 29. Both witnesses have extensive knowledge concerning this “relevant factual background.”
The Defendants’ argument that the Plaintiff has not made “the particularized, proportionality-based showing” necessary to justify the additional depositions in this “narrowed employment-retaliation case” is unpersuasive, as these witnesses are few in number, it is clear why Plaintiff could not depose them earlier, their testimony is relevant and necessary to understanding the background facts in the case, and the expense and burden of taking two depositions does not outweigh the likely benefit of doing so. There is no indication here that the Plaintiff is seeking to take these depositions because he used his other depositions unwisely. In short, the court finds that the Plaintiff’s request is consistent with the requirements of Fed. Rule Civ. P. 26(b)(1) and (2).
The court denies the Plaintiff’s request to take a deposition of an unidentified person whose name might come up in future depositions, and also denies the request to depose Patrick Gannon, a current employee of the Defendants, as the information sought from Mr. Gannon can be gathered from other sources and the Plaintiff has not offered sufficient justification for the late request to depose him.
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