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In re C. R. Bard, Inc. Pelvic Repair System Products Liability Litigation

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

June 22, 2017

C. R. Bard, Inc. Civil Action No. 2:13-cv-21345 THIS DOCUMENT RELATES TO: Veronica Walton



         Pending before the court is defendant C. R. Bard, Inc.'s ("Bard") Motion to Dismiss With Prejudice [ECF No. 10]. The plaintiff has responded to the motion [ECF No. 13], making it ripe for decision. For the reasons stated below, Bard's Motion to Dismiss [ECF No. 10] is DENIED.

         I. Background

         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 approximately 50, 000 cases currently pending, over 5, 000 of which are in the Bard MDL, MDL 2187. Managing multidistrict litigation ("MDL") 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' responsibilities.

         Pretrial Order ("PTO") # 244 provides that plaintiffs in 332 cases in this MDL, including this case, were required to submit a complete Plaintiff Fact Sheet ("PFS") on or before April 3, 2017. SeePTO # 244 at 1 A, No. 2:i0-md-2187, entered Mar. 3, 2017 [ECF No. 3131]. Bard moves for sanctions against the plaintiff for failure to comply with PTO # 244, specifically seeking dismissal of the plaintiffs case with prejudice for failure to serve a complete PFS. In response, plaintiffs counsel stated that the plaintiff, Veronica Walton, is deceased, and they were unable to contact the plaintiffs heirs at law or successors in interest to complete the PFS.[1] However, the plaintiff ultimately filed the PFS on June 2, 2017 [ECF No. 14] pursuant to PTO # 253, 44 days after the plaintiff filed her Response [ECF No. 13]. SeePTO # 253 at 11, No. 2:i0-md-2187, entered May 26, 2017 [ECF No. 3810].

         II. Legal Standard

         Federal Rule of Civil Procedure 37(b)(2) provides that a court may issue "just orders" when a party fails to provide or permit discovery. Fed.R.Civ.P. 37(b)(2)(A). In the MDL world, this authority has particular significance. An MDL judge bears the "enormous" task of "movting] thousands of cases toward resolution on the merits while at the same time respecting their individuality, " and to carry out this task in a smooth and efficient manner, the judge must establish and, more importantly, enforce rules for discovery. In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1231 (9th Cir. 2006). Rule 37(b)(2) supplies the tool for this enforcement, allowing a judge to impose sanctions when a party fails to comply with the court's discovery orders. See Id. at 1232 ("[A] willingness to resort to sanctions, sua sponte if necessary, may ensure compliance with the [discovery] management program." (internal citation omitted)); 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.").[2]

         III. Discussion

         Without making a finding about the sufficiency of the PFS, the circumstances of this case lead me to impose the sanction provided in Rule 37(b)(2)(C), which requires the disobeying party to pay "the reasonable expenses, including attorney's fees, caused by the [discovery] failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(b)(2)(C). The plaintiff has not provided substantial justification for her failure to timely submit to discovery. Furthermore, there are no circumstances that make this sanction unjust. Although the discovery violation has since been cured, it nevertheless resulted in litigation expenses for Bard. Applying Rule 37(b)(2)(C) ensures that the disobeying party, rather than the innocent party, bears those costs.

         To bring this Motion to Dismiss, Bard expended time and money identifying Ms. Walton as one of the non-compliant plaintiffs; drafting a motion to dismiss; and serving the motion. Based on my understanding of the economic and administrative realities of multidistrict litigation, I conclude that a representative, though minimal, valuation of Bard's expenses, and the proper sanction in this case, is in the amount of $1000.

         IV. Conclusion

         It is therefore ORDERED that the plaintiff has 30 business days from the entry of this Order to pay Bard $1000 as minimal partial compensation for the reasonable expenses caused by the plaintiffs failure to comply with discovery.[3] In the event that the plaintiff does not provide adequate or timely payment, the court will consider ordering a show-cause hearing in Charleston, West Virginia, upon motion by the defendants. It is further ORDERED that Bard's Motion to Dismiss With Prejudice [ECF No. 10] is DENIED. Finally, it is ORDERED that plaintiffs counsel send a copy of this Order to the plaintiff via certified mail, return receipt requested, and file a copy of the receipt.

         The court DIRECTS the Clerk to send a copy of this Order to counsel of ...

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