United States District Court, S.D. West Virginia, Charleston Division
IN RE BOSTON SCIENTIFIC CORP., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
Boston Scientific Corp., et al. Civil Action No. 2:16-cv-08593 THIS DOCUMENT RELATES TO Jennie Bye
MEMORANDUM OPINION & ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is Boston Scientific Corporation's
(“BSC”) Motion to Dismiss [ECF No. 8]. The
plaintiff has responded to the motion [ECF No. 9], making it
ripe for review. For the reasons stated below, BSC's
Motion to Dismiss [ECF No. 8] 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 75, 000 cases currently pending, over 19, 000 of which
are in the BSC MDL, MDL 2326. 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.
Pretrial Order (“PTO”) # 16, for example,
provides that each plaintiff in this MDL must submit a
Plaintiff Profile Form (“PPF”) 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 # 16, No.
2:12-md-2326, entered Oct. 4, 2012 [ECF No. 211]. The parties
jointly drafted the requirements for PTO # 16, and I entered
it as applicable to every one of the thousands of cases in
this MDL. The instant plaintiff, however, did not comply with
PTO # 16 in that she wholly failed to submit a completed PPF,
and on this basis, BSC now moves for dismissal and reasonable
sanctions against the plaintiff. Specifically, BSC seeks
reasonable monetary sanctions, dismissal of the
plaintiff's case, and/or another sanction deemed
appropriate by the court.
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)).
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
to PTO # 16, each plaintiff is required to submit a completed
PPF within 60 days of filing a Short Form Complaint. PTO # 16
at ¶ 1b. The purpose of the PPF, as was the case in
In re Phenylpropanolamine, is “to give each
defendant the specific information necessary to defend the
case against it . . . [and] 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 # 16 provided that
“[a]ny plaintiff who fails to comply with the PPF
obligations under this Order may, for good cause shown, be
subject to sanctions, to be determined by the court, upon
motion of the defendants.” PTO # 16 at ¶ 1i.
the plaintiff filed the complaint on September 6, 2016, and
the plaintiff's PPF was due to BSC by November 5, 2016.
As of the date of this Order, the plaintiff has not submitted
a PPF, making it more than 158 days late. Accordingly,
pursuant to PTO # 16, BSC seeks remedy from the court for
this discovery failure in the form of dismissal or monetary
sanctions. The plaintiff responds that these sanctions are
not appropriate because the sole reason for the discovery
deficiency is plaintiff's counsel's inability to
obtain a response from Ms. Bye despite multiple attempts.
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
first factor, bad faith, is difficult to ascertain, given
that plaintiff's counsel has not had recent contact with
Ms. Bye. However, counsel's inability to contact the
plaintiff is not an excuse and instead indicates a failing on
the part of the plaintiff, who 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 # 4, “[a]ll attorneys representing parties
to this litigation . . . bear the responsibility to represent
their individual client or clients.” PTO # 4 ¶ C,
No. 2:12-md-002326, entered Apr. 17, 2012 [ECF No. 103]. This
includes awareness of and good faith attempts at compliance
with all PTOs and other court orders. PTO # 16-which was
jointly drafted by the leadership counsel of both
parties-expressly states that failure to timely submit a
PPF could result in sanctions. 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.”).
second factor-prejudice caused by noncompliance-also leans
toward the order of sanctions. Without a PPF, BSC 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 BSC has had to divert its attention away
from timely ...