United States District Court, S.D. West Virginia, Charleston Division
IN RE: AMERICAN MEDICAL SYSTEMS, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Carolyn Burghdoff, et al.
American Medical Systems, Inc., et al. Civil Action No. 2:13-cv-02062
MEMORANDUM OPINION & ORDER
R.GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is defendant, American Medical Systems,
Inc.'s, (“AMS”) Motion to Dismiss with
Prejudice. [ECF No. 5]. The plaintiffs have not responded,
and the deadline for responding has expired. 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. Managing multidistrict
litigation requires the court to streamline certain
litigation procedures in order to improve efficiency for the
parties and the court. Some of these management techniques
simplify the parties' discovery responsibilities.
Order Number 223 (“PTO # 223”) provides that
plaintiffs in 517 cases in this MDL, including this case,
were required to submit a Plaintiff Fact Sheet
(“PFS”) to act as interrogatory answers under
Federal Rule of Civil Procedure 33 and responses to requests
for production under Federal Rule of Civil Procedure 34.
See PTO # 223 at ¶ B, No. 2:12-md-2325, entered
Oct. 21, 2016 [ECF No. 3216]. Here, the plaintiffs failed to
submit a completed PFS and AMS now moves for sanctions
against the plaintiffs for failure to comply with PTO # 223.
Specifically, AMS seeks dismissal of the plaintiffs'
claims against AMS with prejudice.
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 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 this case, I must be particularly
cognizant of the realities of multidistrict litigation and
the unique problems an MDL judge faces. Specifically, when
handling seven MDLs 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
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. 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 # 223, the plaintiffs were required to submit a
completed PFS by November 21, 2016. The purpose of the PFS,
as was the case in In re Phenylpropanolamine, is
“to give each defendant the specific information
necessary to defend the case against it . . . [because]
without this device, a defendant [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.” 460 F.3d at 1234. To this end, PTO #
223 provided that “[a]ny plaintiff who fails to comply
with this PTO may be subject to a substantial sanction,
including dismissal with prejudice.” PTO # 223 at
¶ E. As of the date of this Order, the plaintiffs have
not submitted a PFS, making it 120 days late.
asks the court to dismiss the plaintiffs' case with
prejudice. The plaintiffs did not respond to AMS's motion
to dismiss. 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 plaintiffs should ...