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In re Ethicon, Inc. Pelvic Repair System Products Liability Litigation

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

September 7, 2017

IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
v.
Ethicon, Inc., et al., Civil Action No. 2:13-cv-02069 THIS DOCUMENT RELATES TO Lourdes McCormack, et al.

          MEMORANDUM OPINION & ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE

         Pending 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 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 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' responsibilities.

         Pretrial 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.

         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, the parties 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 # 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.

         Ethicon 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 ...


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