United States District Court, S.D. West Virginia, Charleston Division
IN RE COLOPLAST CORP. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
Coloplast Corp. Civil Action No. 2:16-cv-09436 THIS DOCUMENT RELATES TO
MEMORANDUM OPINION & ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is Coloplast Corp.'s
(“Coloplast”) Motion to Compel and in the
Alternative to Dismiss [ECF No. 8]. The plaintiffs have not
responded, and the deadline for responding has expired. Thus,
this matter is ripe for my review. For the reasons stated
below, Coloplast's Motion [ECF No. 8] is GRANTED
in part and DENIED in part.
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 47, 000 cases currently pending, approximately
200 of which are in the Coloplast MDL, MDL 2387.
effort to efficiently and effectively manage this MDL, the
court decided to conduct pretrial discovery and motions
practice on an individualized basis so that once a case is
trial-ready (that is, after the court has ruled on all
summary judgment motions, among other things), it can then be
promptly transferred or remanded to the appropriate district
for trial. To this end, the court placed this and other cases
in Coloplast Wave 3. PTO # 123, at 15 [ECF No. 4].
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. Pretrial Order (“PTO”) # 126,
for example, provides that each plaintiff in Wave 3 must
submit a Plaintiff Fact Sheet (“PFS”).
See PTO # 126, at 1 [ECF No. 1276], In re
Coloplast Corp., Pelvic Support Sys. Prods. Liab.
Litig., No. 2:12-md-002387. The plaintiffs, however, did
not comply with PTO # 126 in that they wholly failed to
submit a completed PFS, and on this basis, Coloplast now
seeks an order compelling production of a PFS within five
days, dismissing the case with prejudice if the plaintiffs
fail to comply; dismissing the case with prejudice without an
opportunity to comply; or an award of $100 per day from the
date of the PFS deadline until the plaintiffs serve a PFS.
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)).
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, administered, and employed by the
court and the parties to secure the just, speedy, and
inexpensive determination of every action and
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.”).
to PTO # 126, each plaintiff was ordered to complete and
serve a PFS on Coloplast by May 20, 2017. PTO # 126, at 1.
Although all other deadlines for Coloplast Wave 3 were