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In re American Medical Systems, Inc., Pelvic Repair System Products Liability Litigation

United States District Court, S.D. West Virginia, Charleston Division

February 13, 2017

American Medical Systems, Inc. THIS DOCUMENT RELATES TO Janice Allen, et al. Civil Action No. 2:12-cv-01815



         Pending 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.

         I. Background

          This 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 The Allens' case was selected as a Wave 1 case.

         Here, 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.[1] Def.'s Mot. to Dismiss at 1.

         II. Legal Standard

         Federal 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. 37(d)(3).

         Before 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)).

         In 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.

         Specifically, 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 court's orders.”).

         III. Discussion

         Pursuant 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 The purpose of depositions is to permit each party to develop and resolve the case in a just, speedy, and inexpensive ...

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