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In re Coloplast Corp. Pelvic Support System Products Liability Litigation

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

October 26, 2017

Coloplast Corp. Civil Action No. 2:16-cv-11332 THIS DOCUMENT RELATES TO Janet Grimes



         Pending before the court is Coloplast Corp.'s (“Coloplast”) Motion to Dismiss [ECF No. 11]. The plaintiff has not responded to the motion, and the deadline for responding has expired. Thus, this matter is ripe for my review. For the reasons stated below, Coloplast's Motion 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 approximately 42, 000 cases currently pending, approximately 140 of which are in the Coloplast MDL, MDL 2387.

         In an 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 4. Pretrial Order (“PTO”) # 124, at 10 [ECF No. 4].

         Managing 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 # 124, for example, provides that each plaintiff in Wave 4 must submit a Plaintiff Fact Sheet (“PFS”) by May 20, 2017. See Id. at 2. Coloplast concedes that the plaintiff “served her PFS in accordance with the prescribed deadline.” Def.'s Mot. 3. However, Coloplast contends that “the PFS was deficient in its responses.” Id. On this basis, Coloplast seeks dismissal of the plaintiff's case with prejudice.

         II. Discussion

         PTOs # 12 and 105 set forth specific requirements for completing and serving the PFS. See generally PTO # 12 [ECF No. 40] and PTO # 105 [ECF No. 572], In re Coloplast Corp., Pelvic Support Sys. Prods. Liab. Litig., No. 2:12-md-02387. Exhibit A of PTO # 105 is the proposed PFS agreed to by the parties and approved by this court. Page 1 of the proposed PFS, which is identical to page 1 of the PFS submitted by the plaintiff and attached to Coloplast's Motion to Dismiss, instructs the plaintiff as follows:

In completing this Fact Sheet, you are under oath and must answer every question and provide information that is true and correct to the best of your knowledge. If you cannot recall all of the details requested, please provide as much information as you can and then state that your answer is incomplete and explain why as appropriate. If you select an “I Don't Know” answer, please state all that you do know about that subject.

PTO # 105 Ex. A, at 1; PFS 1 [ECF No. 9]; Def.'s Mot. Ex. A, at 1 [ECF No. 111]. PTO # 12 establishes how defendants must proceed when they receive an incomplete PFS within the court-ordered deadline:

If defendants receive a PFS in the allotted time but the PFS is not substantially complete, defendants' counsel shall send a deficiency letter within 10 days of receipt of a PFS, as applicable by e-mail and U.S. mail to the Plaintiffs' Co-Lead Counsel and the plaintiffs' individual representative counsel, identifying the purported deficiencies. The plaintiff shall have twenty (20) days from receipt of that letter to serve a PFS that is substantially complete in all respects. This letter shall include sufficient detail for the parties to meet and confer regarding the alleged deficiencies.

PTO # 12, at ¶ 2c (emphases added).

         In this case, the plaintiff served her PFS on Coloplast within the May 20 deadline. On May 30, 2017, Coloplast notified plaintiffs counsel via e-mail of the purported deficiencies regarding the PFS. Def.'s Mot. Ex. B [ECF No. 11-2]. Plaintiffs counsel did not respond to Coloplast's deficiency letter. After waiting the prescribed twenty days pursuant to PTO # 12, at ¶ 2c, Coloplast filed this Motion to Dismiss the plaintiffs case with prejudice.

         In its May 30 e-mail, Coloplast identified the following purported ...

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