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In re Coloplast Corp. Pelvic Repair System Sroducts Liability Litigation

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

March 10, 2017

Coloplast Corp., Civil Action No. 2:15-cv-03504 THIS DOCUMENT RELATES TO: Eva Buki



         Pending before the court is Coloplast Corp.'s (“Coloplast”) Motion to Compel and in the Alternative to Dismiss [ECF No. 8]. Briefly, the plaintiff in this case failed to serve a Plaintiff Fact Sheet (“PFS”), and Coloplast seeks an order compelling production of a PFS within five days, dismissing the case with prejudice if the plaintiff fails to comply; dismissing the case with prejudice without an opportunity to comply; or an award of $100 per day from the date of the PFS deadline until plaintiff serves a PFS. The plaintiff has responded [ECF No. 9], and this matter is now ripe for my review.

         I. Legal Standard

         Federal Rule of Civil Procedure 37(b)(2) allows a court to sanction a party for failing to comply with discovery orders. See Fed. R. Civ. P. 37(b)(2) (stating that a court “may issue further just orders” when a party “fails to obey an order to provide or permit discovery”). Before levying a harsh sanction under Rule 37, such as dismissal or default, a court must first consider the following four 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”). 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 Id. 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.”); see also 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 1231-32. Pretrial orders-and the parties' compliance with those orders and the deadlines set forth therein-“are the engine that drives disposition on the merits.” Id. 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.”).

         II. Discussion

         Pursuant to PTO # 107, the Coloplast Wave 2 plaintiffs, including Ms. Buki, were ordered to complete and serve a PFS on Coloplast by September 19, 2016. Id. at 2. Although all other deadlines for Coloplast Wave 2 ultimately were stayed pursuant to PTO # 110, the September 19 PFS due date remained in place. [ECF No. 6].

         According to Coloplast, the plaintiff failed to submit a PFS within the court-ordered deadline. The day after the PFS deadline, plaintiff's counsel moved to withdraw as counsel [ECF No. 7], which I denied on December 1, 2016. [ECF No. 12]. In response to the instant motion, plaintiff's counsel responded that they were unable to communicate with the plaintiff and still wished to withdraw as counsel.

         Applying the Wilson factors to these facts and bearing in mind the unique context of multidistrict litigation, I conclude that although recourse under Rule 37 is justified, the plaintiff should be afforded one more chance to comply with discovery before further sanctions are imposed.

         The first factor, bad faith, is difficult to ascertain, given that plaintiff's counsel has not had recent contact with Ms. Buki. However, counsel's inability to contact the plaintiff is not an excuse, and instead indicates a failing on the part of the plaintiff. A plaintiff has an obligation to provide counsel with any information needed to prosecute her case, including up-to-date contact information. See Link v. Wabash R.R. Co., 370 U.S. 626, 634 n.10 (1962) (“[A] civil plaintiff may be deprived of his claim if he failed to see to it that his lawyer acted with dispatch in the prosecution of his lawsuit.”). Furthermore, as set forth in PTO # 2, “[a]ll attorneys representing parties to this litigation . . . bear the responsibility to represent their individual client or clients.” (PTO # 2 ¶ E, In re: Coloplast Corp., Pelvic Repair System Prods. Liab. Litig., No. 2:12-md-002387, entered Sept. 21, 2012, available at This includes awareness of and good faith attempts at compliance with all PTOs and other court orders. Pretrial Order # 12, which was jointly drafted by the leadership counsel of both parties, expressly states any plaintiff who fails to comply with PFS obligations, may for good cause shown, be subject to sanctions. PTO # 12 ¶ 2(d)[1]. The plaintiff nevertheless failed to comply. Although these failures do not appear to be callous, the fact that they were blatant-and in full knowledge of the court's orders and discovery deadlines-leads me to weigh the first factor against the plaintiff. See In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867 (8th Cir. 2007) (“While not contumacious, perhaps, this is a blatant disregard for the deadlines and procedure imposed by the court, [and t]herefore, we conclude that the [plaintiffs] did not act in good faith.”).

         The second factor-prejudice caused by noncompliance-also supports an order for sanctions. Without a PFS, Coloplast is “unable to mount its defense because it [has] no information about the plaintiff or the plaintiff's injuries outside the allegations of the complaint.” In re Phenylpropanolamine, 460 F.3d at 1234. Furthermore, because Coloplast has had to divert its attention away from timely ...

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