United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
Ethicon, Inc. Civil Action No. 212-cv-07237 THIS DOCUMENT RELATES TO Davis
MEMORANDUM OPINION & ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the Defendants' Motion to Dismiss
with Prejudice [ECF No. 25] filed by Ethicon, Inc., Ethicon
LLC, and Johnson & Johnson (collectively, “the
Ethicon defendants”). The plaintiff has not responded,
and the deadline for responding has expired. Thus, this
matter is ripe for my review. For the reasons stated below,
the Motion is DENIED without prejudice.
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 six remaining active
MDLs, there are nearly 20, 000 cases currently pending,
approximately 13, 000 of which are in the Ethicon MDL, MDL
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 Ethicon Wave 8. Pretrial Order (“PTO”) # 280
[ECF No. 5235], In re Ethicon, Inc. Pelvic Repair Sys.
Prods. Liab. Litig., No. 2:12-md-02327,
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 # 280, for example, provides that each
plaintiff in Wave 8 must submit a completed Plaintiff Fact
Sheet (“PFS”) to defendants by March 19, 2018.
PTO # 280, at 2. The plaintiff, however, did not comply with
PTO # 280 in that she wholly failed to submit a completed
PFS, and on this basis, the Ethicon defendants now seek
dismissal of her case with prejudice.
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)).
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
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.”).
to PTO # 280, each plaintiff in Wave 8 was ordered to
complete and serve a PFS on defendants by March 19, 2018. PTO
# 280, at 2. According to Ethicon, the plaintiff failed to
submit a completed PFS within the court-ordered deadline.
Accordingly, pursuant to PTO # 280, the Ethicon ...