United States District Court, S.D. West Virginia, Charleston Division
IN RE: BOSTON SCIENTIFIC CORP. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
v.
Boston Scientific Corporation Civil Action No. 2:17-cv-00599 THIS DOCUMENT RELATES TO Marsie Shelton
MEMORANDUM OPINION & ORDER
JOSEPH
R. GOODWIN UNITED STATES DISTRICT JUDGE
Pending
before the court is Defendant's Motion to Dismiss with
Prejudice [ECF No. 12] filed by Boston Scientific Corporation
("BSC"). Plaintiffs counsel has responded to the
Motion [ECF No. 13], and the matter is now ripe for decision.
For the following reasons, BSC's Motion is
GRANTED in part to the extent that it seeks
dismissal, but DENIED to the extent that it
seeks dismissal with prejudice.
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
nearly 25, 000 cases currently pending, over 6, 000 of which
are in the BSC MDL, MDL 2326. 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 ("PTO") # 171, for example, required
each Wave 3 plaintiff to serve expert disclosures on
defendants by October 18, 2017. PTO # 171, at 1 [ECF No. 10].
The instant plaintiff, however, did not comply with PTO # 171
in that she wholly failed to submit her expert disclosures.
On this basis, BSC now moves for dismissal of the
plaintiff's case with prejudice.
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.
See Fed. R. Civ. P. 37(b)(2) (stating that a court
“may issue further just orders” when a party
“fails to obey an order to provide or permit
discovery”). Before levying a harsh sanction under Rule
37, such as dismissal or default, a court must first consider
the following four factors identified by the Fourth Circuit
Court of Appeals:
(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.
Mut. Fed. Sav. & Loan Ass'n v. Richards &
Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (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, containing thousands
of individual cases in the aggregate, 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, administered, and employed by the
court and the parties to secure the just, speedy, and
inexpensive determination of every action and
proceeding”). In turn, counsel must collaborate with
the court “in fashioning workable programmatic
procedures” and cooperate with these procedures
thereafter. In re Phenylpropanolamine, 460 F.3d 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 # 171, each Wave 3 plaintiff was required to submit
expert disclosures to defendants by October 18, 2017. PTO #
171, at 1. Here, according to BSC, the plaintiff
“failed to submit her expert disclosure without any
justification for that failure and without seeking leave of
Court or an extension of time from [BSC].” Def.'s
Mot. to Dismiss 2. As of the date of this Order, the
plaintiff has not submitted her expert disclosures, making
them more than 63 days late. Accordingly, BSC seeks dismissal
of the plaintiff's case with prejudice. Plaintiff's
counsel responds that the reason for plaintiff's
noncompliance with PTO # 171 is counsel's inability to
obtain any response or cooperation from their client, despite
numerous attempts. Under these circumstances, plaintiff's
counsel argues that dismissal without prejudice would be a
more appropriate sanction.
Applying
the Wilson factors to these facts and bearing in
mind the unique context of multidistrict litigation, I
conclude that dismissal without prejudice is appropriate in
this case. The first factor, bad faith, is difficult to
ascertain, given that plaintiff's counsel has not had
recent contact with the plaintiff. However, counsel's
inability to contact the plaintiff is not an excuse and
instead indicates a failing on the part of the plaintiff, who
has an obligation to provide counsel with any information
needed to prosecute her case, including up-to-date contact
information. See Link v. Wabash R.R. Co., 370 U.S.
626, 634 n.10 (1962) (“[A] civil plaintiff may be
deprived of his claim if he failed to see to it that his
lawyer acted with dispatch in the prosecution of his
lawsuit.”). Furthermore, as set forth in PTO # 4,
“[a]ll attorneys representing parties to this
litigation . . . bear the responsibility to represent their
individual client or clients.” PTO # 4 ¶ C, No.
2:12-md-02326 (Apr. 17, 2012) [ECF No. 103]. This includes
awareness of and good faith attempts at compliance with all
PTOs and other court orders. The plaintiff nevertheless
failed to comply with the agreed upon discovery deadlines.
Although these failures do not appear to be callous, the fact
that they were blatant and in full knowledge of the
court's orders and discovery deadlines leads me to weigh
the first factor against the plaintiff. See In re Guidant
Corp. Implantable Defibrillators Prods. Liab. Litig.,
496 F.3d 863, 867 (8th Cir. 2007) (“While not
contumacious, perhaps, this is a blatant disregard for the
deadlines and procedure imposed by the court, [and
t]herefore, we conclude that the [plaintiffs] did not act in
good faith.”).
The
second factor-prejudice caused by noncompliance-also leans
toward the order of sanctions. Without the plaintiff's
expert disclosures, BSC is unable to mount an adequate
defense to the plaintiff's claims. Furthermore, because
BSC has had to divert its attention away from timely
plaintiffs and onto this case, the delay has unfairly
impacted the progress of the remaining plaintiffs in MDL
2326.
The
adverse effect on the management of the MDL as a whole segues
to the third factor, the need to deter this sort of
noncompliance. When parties fail to comply with deadlines
provided in pretrial orders, a domino effect develops,
resulting in the disruption of other MDL cases. In fact, the
court expects to have to evaluate and dispose of a
significant number of motions similar to the one at bar,
thereby directing its time and resources to noncompliant
plaintiffs at the expense of other plaintiffs in this MDL.
This cumbersome pattern goes against the purpose of MDL
procedure, and I must deter any behavior that would allow it
to continue. See H.R. Rep. No. 90-1130, at 1 (1967),
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