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In re Coloplast Corp. Pelvic Support System Products Liability Litigation

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

December 22, 2017

IN RE COLOPLAST CORP. PELVIC SUPPORT SYSTEM PRODUCTS LIABILITY LITIGATION
v.
Mentor Worldwide LLC, et al. Civil Action No. 2:15-cv-09660 THIS DOCUMENT RELATES TO: Donna Rollings

          MEMORANDUM OPINION & ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE.

         Pending before the court is Defendant's Motion to Dismiss for Failure to Prosecute [ECF No. 20] filed by Mentor Worldwide LLC (“Mentor”). Plaintiff's counsel has responded [ECF No. 22], and Mentor has replied [ECF No. 23]. Thus, this matter is ripe for my review. For the reasons stated below, Mentor'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

         The 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, approximately 150 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 3. Pretrial Order (“PTO”) # 123, at 14 [ECF No. 7].

         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. For example, PTO # 132 required plaintiffs to submit specific causation expert disclosures by September 5, 2017, and set the close-of-discovery deadline for November 4, 2017. The plaintiff failed to comply with these deadlines. On this basis, Mentor now seeks dismissal 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

         PTO # 132 required Coloplast plaintiffs to submit specific causation expert disclosures by September 5, 2017, and set the close-of-discovery deadline for November 4, 2017. According to Mentor, the plaintiff failed to respond to requests for written discovery. Additionally, Mentor attempted to contact the plaintiff at least six times to request dates for her deposition, but received no response. Mentor noticed the plaintiff's deposition for September 15, 2017, but it was postponed based on the parties' agreement. On October 6, 2017, Mentor served an Amended Notice of Deposition of Plaintiff for October 17, 2017. On October 11, 2017, plaintiff's counsel informed Mentor that they would be attending the deposition telephonically. On October 17, ...


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