United States District Court, S.D. West Virginia, Charleston Division
IN RE AMERICAN MEDICAL SYSTEMS, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
American Medical Systems, Inc. THIS DOCUMENT RELATES TO Janice Allen, et al. Civil Action No. 2:12-cv-01815
MEMORANDUM OPINION & ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE
before the court is a Motion to Dismiss with Prejudice [ECF
No. 17] filed by American Medical Systems, Inc.
(“AMS”). The plaintiffs, Janice Allen and
Franklin Allen, filed their Response opposing AMS's
motion and requesting an extended briefing schedule [ECF No.
20], and AMS filed its reply [ECF No. 21]. Thus, this matter
is ripe for my review. For the reasons stated below,
AMS's Motion is DENIED.
case resides in one of seven MDLs assigned to me by the
Judicial Panel on Multidistrict Litigation concerning the use
of transvaginal surgical mesh to treat pelvic organ prolapse
and stress urinary incontinence. In the seven MDLs, there are
over 60, 000 cases currently pending, over 4, 000 of which
are in the AMS MDL, MDL 2325. In an effort to efficiently and
effectively manage this massive MDL, the court decided to
conduct pretrial discovery and motions practice on an
individualized basis so that once a case is trial-ready (that
is, after the court has ruled on all summary judgment
motions, among other things), it can then be promptly
transferred or remanded to the appropriate district for
trial. To this end, at the court's request, the parties
submitted a joint list of 351 cases in the AMS MDL that name
only the AMS defendants or allege claims against only
AMS's products. These cases became part of a
“wave” of cases to be prepared for trial and, if
necessary, remanded. See Pretrial Order # 222,
In re American Medical Systems, Inc. Pelvic Repair Sys.
Prods. Liab. Litig., No. 2:12-md-02325, October 21,
2016, available at
Allens' case was selected as a Wave 1 case.
the plaintiffs are residents of Tennessee and Ms. Allen was
implanted with AMS's MiniArc Sling in Knoxville,
Tennessee. Am. Short Form Compl. [ECF No. 12] ¶¶ 4,
8, 11. On November 22, 2016, AMS noticed the deposition of
Ms. Allen for November 29, 2016, at 9:00 AM. Response Ex. A.
[ECF No. 17-1]. The deposition was scheduled to take place at
Gibson Court Reporting, 606 West Main Street, Suite 350 in
Knoxville, Tennessee. Id. The plaintiffs'
counsel confirmed via email on November 23, 2016, and then
counsel for both parties emailed again on November 28, 2016.
Id. Ex. B. Counsel agree that on November 29, 2016,
counsel for both parties appeared at the deposition, but that
Ms. Allen failed to appear and, after the scheduled start
time, informed her counsel by telephone that she did not plan
to attend the deposition. See Def.'s Mem. Supp.
Mot. to Dismiss [ECF No. 18]; Def.'s Mot. to Dismiss, Ex
C [ECF 17-1] (Statement on the Record); Pls.'
Counsel's Mot. to Withdraw [ECF No. 19]. AMS moves to
dismiss the plaintiffs' case with prejudice for failure
to comply with discovery as set forth in this court's PTO
# 222. Def.'s Mot. to Dismiss at 1.
Rule of Civil Procedure 37(d) allows a court to sanction a
party for failing to attend its own deposition. Fed.R.Civ.P.
37(d)(1)(A)(i) (“The court where the action is pending
may, on motion, order sanctions if: (i) a party . . . fails,
after being served with proper notice, to appear for that
person's deposition.”) Sanctions may include
dismissal of the action and rendering of a default judgment,
in addition to paying “reasonable expenses, including
attorney's fees, caused by the failure, unless the
failure was substantially justified or other circumstances
make an award of expenses unjust.” Fed.R.Civ.P.
levying a harsh sanction under Rule 37, such as dismissal or
default, a court must first consider the following four
Wilson factors identified by the Fourth Circuit
Court of Appeals:
(1) Whether the noncomplying party acted in bad faith; (2)
the amount of prejudice his noncompliance caused his
adversary, which necessarily includes an inquiry into the
materiality of the evidence he failed to produce; (3) the
need for deterrence of the particular sort of noncompliance;
and (4) the effectiveness of less drastic sanctions.
Mut. Fed. Sav. & Loan Ass'n v. Richards &
Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (citing
Wilson v. Volkswagen of Am., Inc., 561 F.2d 494,
503-06 (4th Cir. 1977)).
applying these factors to the case at bar, I must be
particularly cognizant of the realities of multidistrict
litigation and the unique problems an MDL judge faces.
when handling seven MDLs, each containing thousands of
individual cases, case management becomes of utmost
importance. See In re Phenylpropanolamine Prods. Liab.
Litig., 460 F.3d 1217, 1231 (9th Cir. 2006) (emphasizing
the “enormous” task of an MDL court in
“figur[ing] out a way to move thousands of cases toward
resolution on the merits while at the same time respecting
their individuality”); H.R. Rep. No. 90-1130, at 1
(1967), reprinted in 1968 U.S.C.C.A.N. 1898, 1901
(stating that the purpose of establishing MDLs is to
“assure the uniform and expeditious treatment” of
the included cases). I must define rules for discovery and
then strictly adhere to those rules, with the purpose of
ensuring that pretrial litigation flows as smoothly and
efficiently as possible. See Phenylpropanolamine,
460 F.3d. at 1232 (“[T]he district judge must
establish schedules with firm cutoff dates if the coordinated
cases are to move in a diligent fashion toward resolution by
motion, settlement, or trial.”); Fed.R.Civ.P. 1
(stating that the Federal Rules of Civil Procedure
“should be construed, administered, and employed by the
court and the parties to secure the just, speedy, and
inexpensive determination of every action and
proceeding”). In turn, counsel must collaborate with
the court “in fashioning workable programmatic
procedures” and cooperate with these procedures
thereafter. In re Phenylpropanolamine, 460 F.3d at
1232; see also Fed. R. Civ. P. 1. Pretrial
orders-and the parties' compliance with those orders and
the deadlines set forth therein-“are the engine that
drives disposition on the merits.” In re
Phenylpropanolamine, 460 F.3d at 1232. And a
“willingness to resort to sanctions” in the event
of noncompliance can ensure that the engine remains in tune,
resulting in better administration of the vehicle of
multidistrict litigation. Id.; see also Freeman
v. Wyeth, 764 F.3d 806, 810 (8th Cir. 2014) (“The
MDL judge must be given ‘greater discretion' to
create and enforce deadlines in order to administrate the
litigation effectively. This necessarily includes the power
to dismiss cases where litigants do not follow the
to PTO # 222, the deadline for most depositions and the close
of discovery for Wave 1 cases was originally May 19, 2017.
PTO # 222. I subsequently amended PTO # 222 to extend that
deadline to June 19, 2017. See Pretrial Order # 230,
In re American Medical Systems, Inc. Pelvic Repair Sys.
Prods. Liab. Litig., No. 2:12-md-02325, January 12,
2017, available at
purpose of depositions is to permit each party to develop and
resolve the case in a just, speedy, and inexpensive ...