United States District Court, S.D. West Virginia, Charleston Division
IN RE COLOPLAST CORP. PELVIC SUPPORT SYSTEM PRODUCTS LIABILITY LITIGATION
Coloplast Corp., et al. Civil Action No. 2:16-cv-01321 THIS DOCUMENT RELATES TO: Johnetta King, et al.
MEMORANDUM OPINION & ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE.
before the court is Coloplast Corp.'s
(“Coloplast”) Motion to Dismiss [ECF No. 17]. The
plaintiffs have responded to the motion [ECF No. 20], and
Coloplast has replied [ECF No. 21], making it ripe for
decision. Also pending before the court is the
plaintiffs' Motion for Leave to File Surreply [ECF No.
22]. For the reasons stated below, Coloplast's Motion
[ECF No. 17] is DENIED and the
plaintiffs' Motion [ECF No. 22] 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
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. 7].
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. PTO # 124, for example, provides that each
plaintiff in Wave 4 must submit a Plaintiff Fact Sheet
(“PFS”). See Id. at 1. Coloplast
concedes that the plaintiffs “served their PFS in
accordance with the prescribed deadline.” Def.'s
Mot. 3. However, Coloplast contends that “the PFS was
deficient in its responses” and that the plaintiffs
failed to cure those deficiencies. Id. On this
basis, Coloplast now seeks an order dismissing this case with
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. 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 alleged deficiencies.
PTO # 12, at ¶ 2c.
case, the plaintiffs served their 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
response to Coloplast's Motion to Dismiss, the plaintiffs
state that on June 21, 2017, they served on Coloplast an
amended PFS addressing the identified deficiencies. Pls.'
Resp. 1. In its reply, Coloplast states that it “has
never seen this alleged Amended PFS” despite conducting
“a diligent search.” Def.'s Reply 1. In the
plaintiffs' surreply, they state that they “emailed
an Amended PFS on June 21, 2017 to Defendant at the same
email addresses where Defendant acknowledged receiving the
original PFS.” Pls.' Surreply 2 [ECF No. 22-1].
Attached to the plaintiffs' surreply are two emails, both
sent from plaintiffs' counsel to Coloplast's counsel
using the same respective email addresses. The first email,
dated May 19, 2017, includes the plaintiffs' PFS as a
downloadable attachment. Pls.' Surreply, Ex. A-1 [ECF No.
22-2]. The second email, dated June 21, 2017, includes the
plaintiffs' amended PFS as a downloadable attachment.
Pls.' Surreply, Ex. A-2 [ECF No. 22-3].
court finds that the plaintiffs have provided the court with
documentation to support the claim that they addressed the
deficiencies in the PFS identified by Coloplast as required
by PTO # 12. Accordingly, dismissal of the plaintiffs'
case with prejudiced is unwarranted.