United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Ruth Lucille Sandy
Ethicon, Inc., et al. Civil Action No. 2:12-cv-06875
MEMORANDUM OPINION & ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is Defendants' Motion to Dismiss [ECF
No. 25] filed by defendants Ethicon, Inc. and Johnson &
Johnson (collectively, “Ethicon”). The plaintiff
has responded to the motion [ECF No 28], making it ripe for
decision. For the reasons stated below, Ethicon's Motion
[ECF No. 25] 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
approximately 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. See PTO # 248 at ¶ A, No.
2:12-md-2327, entered Feb. 21, 2017 [ECF No. 3398]. PTO # 17
establishes what must be included in the PFS and provides
that, “[a]ny plaintiff who fails to comply with the PFS
obligations under this Order may, for good cause shown, be
subject to sanctions, to be determined by the court, upon
motion of the defendants.” PTO # 17 at ¶ 2(d), No.
2:12-md-2327, entered Oct. 4, 2012 [ECF No. 281]. Here, the
plaintiff failed to submit a completed PFS by March 22, 2017.
Ethicon now moves for sanctions against the plaintiff for
failure to comply with PTO # 248 and PTO # 17, specifically
seeking dismissal of the plaintiff's case with prejudice
for failure to serve a complete PFS. In response,
plaintiff's counsel stated that the plaintiff, Ruth
Lucille Sandy, is deceased, and they were unable to contact
the plaintiff's heir at law or successors in interest to
complete the PFS.
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, counsel 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.”).
to PTO # 248, the plaintiff was required to submit a
completed PFS by March 22, 2017. The purpose of the PFS, as
was the case in In re Phenylpropanolamine, is
“to give each defendant the specific information
necessary to defend the case against it . . . [because]
without this device, a defendant [is] unable to mount its
defense because it [has] no information about the plaintiff
or the plaintiff's injuries outside the allegations of
the complaint.” 460 F.3d at 1234. As of the date of
this Order, the plaintiff has not submitted a complete PFS,
making it 140 days late.
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