United States District Court, S.D. West Virginia, Charleston Division
IN RE COLOPLAST CORP. PELVIC SUPPORT SYSTEM PRODUCTS LIABILITY LITIGATION
Coloplast Corp. Civil Action No. 2:16-cv-11332 THIS DOCUMENT RELATES TO Janet Grimes
MEMORANDUM OPINION & ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
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
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.
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].
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.
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
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
PTO # 12, at ¶ 2c (emphases added).
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.
May 30 e-mail, Coloplast identified the following purported