United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC. PELVIC REPAIR SYSTEMS PRODUCT LIABILITY LITIGATION
Ethicon, Inc., et al. THIS DOCUMENT RELATES TO Lucille Deakins, et al.
MEMORANDUM OPINION & ORDER MDL, 2327
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the defendants' Motion to Dismiss or
for Other Relief [ECF No. 35]. The plaintiff's counsel
responded [ECF No. 38] and the defendants replied [ECF No.
41]. The matter is now ripe for decision. For the following
reasons, the defendants' Motion is
case, Ethicon repeatedly scheduled or attempted to schedule
Ms. Deakins's deposition; however, the health issues of
Ms. Deakins and her attorney resulted in the postponement of
those depositions. See Mot. Dismiss 2-6; Resp. 2-4.
Importantly, Ms. Deakins relies on her son because of a
previously suffered stroke, and Ms. Deakins's in-home
care provider provided a letter on January 31, 2017, stating
that Ms. Deakins's health issues kept her homebound and
that Ms. Deakins is not competent to give a deposition. Resp.
3. Prior to the defendants' Motion, the plaintiffs and
defendants unsuccessfully negotiated in an effort to remove
this case from Wave 4 of the Ethicon MDL. Id.
37(d)(1) of the Federal Rules of Civil Procedure permits me
to sanction a party who fails to show up for a properly
noticed deposition or who fails to answer interrogatories or
requests for inspection. Fed.R.Civ.P. 37(d)(1)(A).
Permissible sanctions for these actions include dismissal of
the action. Fed.R.Civ.P. 37(d)(3). Where dismissal is a
potential sanction, courts have narrower discretion because
“the district court's desire to enforce its
discovery orders is confronted head-on by the party's
rights to a trial by jury and a fair day in court.”
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
(4th Cir. 1977)); see also Viswanathan v. Scotland Cty.
Bd. of Educ., 165 F.R.D. 50, 53 (M.D. N.C. 1995),
aff'd, 76 F.3d 377 (4th Cir. 1996) (applying the
Wilson factors where a plaintiff failed to attend
his own deposition). To determine whether dismissal is
warranted, courts must consider “(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.” Richards
& Assocs., Inc., 872 F.2d at 92.
realities of multidistrict litigation and the unique problems
an MDL judge faces weigh heavy when balancing the four
factors. 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
the non-complying party did not act in bad faith in this
case. The health issues at play in this case are serious, and
they certainly provide a valid excuse for Ms. Deakins's
postponed depositions. Second, while the deposition of Ms.
Deakins is crucial, the plaintiffs have not foreclosed future
depositions and do not appear to be actively hindering the
defendants' attempts to gather evidence. Furthermore,
this is not conduct worthy of deterrence. While MDL cases
require efficient management, that efficient management
should not punish the severely ill. Finally, less drastic
sanctions are appropriate where, as here, the delay is not a
result of the plaintiffs' negligence or attempts to
hinder the litigation; indeed, I FIND that
sanctions are not appropriate in this case.
foregoing reasons, I ORDER that the
defendants' Motion to Dismiss [ECF No. 35] is
court DIRECTS the Clerk to send a copy of
this Order to counsel of ...