United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
Ethicon, Inc., et al. THIS DOCUMENT RELATES TO: Brenda Harvey Civil Action No. 2:12-cv-07930
MEMORANDUM OPINION & ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
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.
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'
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.
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)).
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.
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.”).
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.
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. ...