United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION MDL THIS DOCUMENT RELATES TO: Lourdes McCormack, et al.
Ethicon, Inc., et al.
MEMORANDUM OPINION & ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE.
before the court is Defendants' Motion to Dismiss [ECF
No. 18] filed by defendants Ethicon, Inc. and Johnson &
Johnson (collectively, “Ethicon”). The plaintiffs
have responded to the motion [ECF No. 20], and Ethicon has
replied [ECF No. 21], making it ripe for decision. For the
reasons stated below, Ethicon's Motion [ECF No. 18] is
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”) # 251 provides that plaintiffs in
400 cases in this MDL, including this case, were required to
submit a Plaintiff Fact Sheet (“PFS”) on or
before May 25, 2017. See PTO # 251 at ¶ A, No.
2:12-md-2327, entered Apr. 27, 2017 [ECF No. 3748]. 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
plaintiffs failed to submit a completed PFS by May 25, 2017.
Ethicon now moves for sanctions against the plaintiffs for
failure to comply with PTO # 251 and PTO # 17, specifically
seeking dismissal of the plaintiffs' case for failure to
serve a complete PFS, timely provide medical authorization,
and to make themselves available for deposition. In response,
the plaintiffs' counsel stated that they were unable to
contact the plaintiffs.
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.”).
to PTO # 251, the plaintiffs were required to submit a
completed PFS by May 25, 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 plaintiffs have not submitted a complete PFS,
making it 104 days late.
asks the court to dismiss the plaintiffs' 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 plaintiffs should be afforded