United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
Ethicon, Inc., et al., Civil Action No. 2:12-cv-07077 THIS DOCUMENT RELATES TO: Robin E. Whittaker
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is Ethicon, Inc., Ethicon, LLC, and Johnson
& Johnson's (collectively “Ethicon”)
Motion to Dismiss or for Other Relief [ECF No. 22]. The
plaintiff has responded [ECF No. 24], and Ethicon has replied
[ECF No. 25]. Thus, this matter is now ripe for my review.
For the reasons stated below, Ethicon's Motion to Dismiss
[ECF No. 22] is DENIED.
defendants move to dismiss this case because the plaintiff
failed to provide a complete Plaintiff Fact Sheet
(“PFS”). This 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, approximately 28, 000 of which are in the
Ethicon MDL, MDL 2327. 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.
example, pursuant to Pretrial Order (“PTO”) # 17,
where a plaintiff's case is chosen for individual
discovery, the plaintiff must submit a completed PFS. PTO #
17 at ¶ 2(a), In re: Ethicon Pelvic Repair System
Prods. Liab. Litig., No. 2:12-md-002327, [ECF No. 281],
entered Oct. 4, 2012, available at
http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. If the
plaintiff fails to comply with these PFS obligations, he or
she may be subject to sanctions. Id. at ¶ 2(d).
part of this MDL, I ordered the plaintiffs and defendants to
select 200 of the oldest cases in the Ethicon MDL that name
only Ethicon, Inc., Ethicon, LLC, and/or Johnson &
Johnson or allege claims only against the Ethicon
defendants' products. Once selected, those cases became
part of a “wave” of cases to be prepared for
trial and, if necessary, remanded back to the appropriate
court. The instant case was selected as an Ethicon Wave 5
case that is governed by discovery deadlines set forth in PTO
# 248, In re: Ethicon Pelvic Repair System Prods. Liab.
Litig., No. 2:12-md-002327, [ECF No. 3398], entered Feb.
21, 2017, available at
Pursuant to PTO # 248, the plaintiff was to complete and
serve a PFS on Ethicon by March 22, 2017. Id. at 1.
According to Ethicon, the plaintiff, Ms. Robin E. Whittaker,
failed to submit a PFS within the court-ordered timeframe for
service pursuant to PTOs # 17 and # 248. As of this date, the
plaintiff has still failed to submit the PFS to Ethicon. On
this basis, Ethicon moves to dismiss Ms. Whittaker's case
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 to ensure efficient pretrial litigation. 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
plaintiff was required to submit the PFS to Ethicon by March
22, 2017, pursuant to PTO # 248. The plaintiff has still
failed to produce a PFS to Ethicon.
response, plaintiff's counsel claim, despite their best
efforts, they are unable to get in contact with Ms.
Whittaker. Despite six phone calls and nine emails over a
sixteen day period, plaintiff's counsel have not been
able to correspond with Ms. Whittaker. Given their efforts in
contacting the plaintiff and the fact that the
plaintiff's discovery ...