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

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

August 2, 2017

IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
v.
Ethicon, Inc., et al. THIS DOCUMENT RELATES TO: Brenda Harvey Civil Action No. 2:12-cv-07930

          MEMORANDUM OPINION & ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE.

         Pending before the court is Defendants' Motion to Dismiss With Prejudice [ECF No. 28] filed by defendants Ethicon, Inc., Ethicon, LLC, and Johnson & Johnson (collectively, “Ethicon”). The plaintiff has not responded, and the deadline for responding has expired. Thus, this motion is now ripe for my review. For the reasons stated below, Ethicon's Motion [ECF No. 28] 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 over 50, 000 cases currently pending, approximately 30, 000 of which are in the Ethicon MDL, MDL 2327. 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”) # 248 provides that plaintiffs in 400 cases in this MDL, including this case, were required to submit a Plaintiff Fact Sheet (“PFS”) on or before March 22, 2017, file expert disclosures on or before May 22, 2017, and submit to a deposition on or before July 19, 2017. See PTO # 248 at ¶ A, No. 2:12-md-2327, entered Feb. 21, 2017 [ECF No. 3398]. Here, as of the date of this order, the plaintiff has not submitted a completed PFS, has not disclosed her experts, and has not communicated with Ethicon to schedule her deposition. Ethicon now moves for sanctions against the plaintiff for failure to comply with PTO # 248, specifically seeking dismissal of the plaintiff'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. The dismissal of an action is an example of a possible sanction under this rule. Before employing this severe sanction, however, a court must balance the competing interests of the “court's desire to enforce its discovery orders, ” on the one hand, and “the [plaintiff's] rights to a trial by jury and a fair day in court, ” on the other. Mut. Fed. Sav. & Loan v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir. 1989). The Fourth Circuit has identified four factors for the court to consider when confronting a motion to dismiss under Rule 37:

(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.

Id. (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 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 and administered to secure the just, speedy, and inexpensive determination of every action and proceeding”). In turn, the parties must collaborate with the court “in fashioning workable programmatic procedures” and cooperate with these procedures thereafter. Id. 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

         Ethicon asks the court to dismiss the plaintiff's case with prejudice. 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 imposed.

         The first factor, bad faith, is difficult to ascertain, given that the plaintiff did not respond. Appearing before this court pro se, however, is not itself an excuse for failing to comply with court orders and instead indicates a failing on the part of the plaintiff, who has an obligation to comply with discovery requests and time deadlines. See Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (“Pro se litigants are entitled to some deference from courts . . . . But they as well as other litigants are subject to the time requirements and respect for court orders without which effective judicial administration would be impossible.”). The plaintiff failed to comply with PTO # 248, failed to respond to Ethicon's motion to dismiss, and as of today has provided no indication that she intends to submit a PFS, expert disclosures, or submit to her deposition. 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. ...


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