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In re Ethicon, Inc., Pelvic Repair System Products Liability Litigation

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

April 19, 2017

Ethicon, Inc., et al., Civil Action No. 2:12-cv-07077 THIS DOCUMENT RELATES TO: Robin E. Whittaker



         Pending 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.

         I. Background

         The 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.

         For 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 If the plaintiff fails to comply with these PFS obligations, he or she may be subject to sanctions. Id. at ¶ 2(d).

         As a 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 with prejudice.

         II. 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 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 orders.”).

         III. Discussion

         The 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.

         In 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 ...

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