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In re Boston Scientific Corp., Pelvic Repair System Products Liability Litigation

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

August 28, 2017

IN RE BOSTON SCIENTIFIC CORP., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Donita Snow
v.
Boston Scientific Corp. Civil Action No. 2:17-cv-00704

          MEMORANDUM OPINION & ORDER

          JOSEPH R. GOODWIN, UNITED STATES DISTRICT

         Pending before the court is defendant Boston Scientific Corporation's (“BSC”) Motion to Dismiss With Prejudice. [ECF No. 7]. The plaintiff has responded to the Motion [ECF No. 8], making it ripe for review. For the reasons stated below, BSC's Motion [ECF No. 7] 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 15, 000 of which are in the BSC MDL, MDL 2326. Managing multidistrict litigation requires the court to streamline certain litigation procedures to improve efficiency for the parties and the court. Some of these management techniques simplify the parties' responsibilities.

         Pretrial Order (“PTO”) # 165 provides that plaintiffs in 255 cases in this MDL, including this case, were required to submit a Plaintiff Fact Sheet (“PFS”) on or before July 21, 2017. See PTO # 165 at ¶ A, No. 2:12-md-2326, entered June 21, 2017 [ECF No. 3902]. PTO # 16 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 # 16 at ¶ 2(d), No. 2:12-md-2326, entered Oct. 4, 2012 [ECF No. 211]. Here, the plaintiff failed to submit a completed PFS by July 21, 2017. BSC now moves for sanctions against the plaintiff for failure to comply with PTO # 165 and PTO # 16, specifically seeking dismissal of the plaintiff's case with prejudice for failure to serve a complete PFS. In response, the plaintiff's counsel stated that they were unable to contact the plaintiff to complete the PFS.

         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, counsel 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

         Pursuant to PTO # 165, the plaintiff was required to submit a completed PFS by July 21, 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 ...


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