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In re C. R. Bard, Inc. Pelvic Repair System Products Liability Litigation

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

February 28, 2018

C. R. Bard, Inc. Civil Action No. 2:16-cv-03816



         Pending before the court is the Motion to Dismiss With Prejudice or in the Alternative Motion for Show Cause Order for Failure to Serve a Plaintiff Profile Form or Plaintiff Fact Sheet, filed by defendant C. R. Bard, Inc. (“Bard”) on December 15, 2017 (“Motion”) [ECF No. 14]. The plaintiff did not file a response, and the deadline to file an opposition has expired. Thus, this matter is now ripe for my review. For the reasons stated below, the Motion is GRANTED.

         I. Background

         This is Bard's second motion to dismiss filed on grounds that the plaintiff has failed to comply with discovery deadlines. On July 26, 2017, in response to Bard's previous motion, I ordered the plaintiff to submit a completed Plaintiff Fact Sheet (“PFS”) with verifications and authorizations to Bard within thirty days [ECF No. 10]. In the same order, I also expressly warned the plaintiff that her “[f]ailure to comply . . . may result in dismissal with prejudice upon motion by Bard.” Id. at 6. To date, nothing in the record suggests that the plaintiff complied with the July 26, 2017 order.

         In the instant Motion, Bard alleges that the plaintiff failed to provide a completed Plaintiff Profile Form (“PPF”) or PFS timely. In moving for relief, Bard asks that (1) the court dismiss the complaint with prejudice, or, in the alternative, (2) require the plaintiff to show cause as to her failure to provide a PPF and PFS as directed.

         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 roughly 24, 000 cases currently pending, approximately 3, 000 of which are in the Bard MDL, MDL No. 2187.

         In an effort to manage the massive Bard MDL efficiently and effectively, the court decided to conduct pretrial discovery and motions practice on an individualized basis. To this end, I ordered the plaintiffs and defendants to submit a joint list of remaining cases in the Bard MDL, MDL 2187, with claims against Bard and other defendants where counsel has at least twenty cases in the Bard MDL. The list included nearly 3000 cases. From these cases, I selected 333 cases to become part of a “wave” of cases to be prepared for trial and, if necessary, remanded. See Pretrial Order No. 236, In re C. R. Bard, Inc. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:10-md-02187, Jan. 27, 2017, Upon the creation of a wave, a docket control order subjects each active case in the wave to the same scheduling deadlines, rules regarding motion practice, and limitations on discovery. I selected the instant civil action as a Wave 4 case. As I directed in PTO # 236, all plaintiffs in Wave 4 cases were required to submit a PFS by February 27, 2017.

         Managing multidistrict litigation also 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 # 66, for example, provides that each plaintiff in cases that have been filed in, removed to, or transferred to this MDL on or after January 9, 2013, must submit a PPF within sixty (60) days of filing the Short Form Complaint. See PTO No. 66.

         Thereafter, I imposed a filing requirement on the PPFs and the PFSs, directing each plaintiff to file with the Clerk of the court in that plaintiff's individual case, a complete copy of the PPF and PFS. See PTO No. 253. The deadlines imposed on the plaintiff to submit and file a PPF and PFS have both expired.

         II. Analysis

         Here, the record establishes that the plaintiff failed to file either the PFS or the PPF timely. Bard now alleges that the plaintiff has also failed to submit either the PFS or PPF; a charge uncontested given the absence of any opposition to the Motion.

         Rule 41(b) of the Federal Rules of Civil Procedure provides that a defendant may move for dismissal of a civil action “[i]f the plaintiff fails to prosecute or comply with these rules or a court order.” Fed.R.Civ.P. 41(b). In this case, the plaintiff failed to respond to several specific directives of the court. Despite the warning of sanctions, the plaintiff has still not complied with this court's prior orders or requested an enlargement of time to respond.

         I recognize that dismissal is “not a sanction to be invoked lightly.” Ba lard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989). Generally, courts must consider certain criteria addressing the propriety of dismissal as a sanction given the particular circumstances of the case:

(1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) ...

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