In re Denture Cream Products Liability Litigation

In a 2011 product-liability action, numerous parties (the claimants) (plaintiffs) sued the Proctor & Gamble Manufacturing Company and other entities (collectively, P&G) (defendants) asserting that P&G’s denture cream was toxic and had caused neurological injuries. The court entered a comprehensive confidentiality and protective order governing discovery. The claimants issued a third-party subpoena on counsel for Laura Day, requesting production of materials that had been compiled for mediation in a binder (mediation binder) in a 2007 matter involving similar product-liability claims by Day against P&G. Day and P&G had settled her claims. The mediation binder included Day’s demand letter, counsel’s damages calculations, and the settlement agreement between Day and P&G. Day and her counsel had no objection to producing the mediation binder except that her settlement agreement contained a confidentiality provision. P&G filed a motion to quash the subpoena. The claimants’ counsel informed the court that the claimants would not use any settlement-related materials to establish P&G’s liability, that claimants had no opposition to the redaction of Day’s specific settlement amount, and that the mediation binder was relevant in showing that P&G had notice of the product’s toxicity as early as 2007. Moreover, the claimants’ counsel argued that the damages calculations in the mediation binder showed the potential severity of harm caused by the denture cream, which should have prompted a P&G investigation. Citing Federal Rule of Evidence (FRE) 408, P&G responded that Day’s monetary demands and settlement materials were not discoverable.