United States District Court, S.D. West Virginia, Charleston Division
IN RE BOSTON SCIENTIFIC CORP., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
Boston Scientific Corp. Civil Action No. 2:16-cv-07674 THIS DOCUMENT RELATES TO DuBose, et al.
MEMORANDUM OPINION & ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is Boston Scientific Corporation's
(“BSC”) Motion to Dismiss [ECF No. 6]. 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, BSC's Motion to
Dismiss [ECF No. 6] 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 15, 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 plaintiffs, however, did not comply
with PTO # 16 in that they wholly failed to submit a
completed PPF, and on this basis, BSC now moves for dismissal
and reasonable sanctions against the plaintiffs.
Specifically, BSC seeks reasonable monetary sanctions,
dismissal of the plaintiffs' 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 plaintiffs filed their complaint on August 12, 2016, and
the plaintiffs' PPF was due to BSC by October 11, 2016.
As of the date of this Order, the plaintiffs have not
submitted a PPF, making it more than 216 days late. BSC asks
the court to dismiss the plaintiffs' case or,
alternatively, sanction the plaintiffs a reasonable monetary
penalty under the terms and conditions that the court deems
appropriate. The plaintiffs made no response to BSC'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 be afforded
one more chance to comply with discovery before further
sanctions are imposed.
first factor, bad faith, is difficult to ascertain, given
that plaintiffs' counsel have not responded.
Counsel's inability to contact the plaintiffs is not an
excuse and instead indicates a failing on the part of the
plaintiffs, who have 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 plaintiffs 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 plaintiffs.
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 ...