Cox et al v. Mentor Worldwide LLC et al

Filing 41

ORDER granting 40 Motion for Suggestion of Remand. Ordered by US DISTRICT JUDGE CLAY D LAND on 07/26/2016. (CCL)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION * MDL Docket No. 2004 4:08-MD-2004 (CDL) * Case No. * 4:13-cv-355 (Cox) O R D E R Plaintiff Emma Cox’s counsel filed a motion to withdraw as attorney in this action because counsel had a difficult time communicating with Cox. The Court denied the motion and ordered Plaintiff’s counsel to show cause why Cox’s Complaint should not be dismissed for lack of prosecution. not respond to the Court’s order. Plaintiff’s counsel did Mentor filed a motion to dismiss for lack of prosecution or, in the alternative, for suggestion of remand (ECF No. 40 in 4:13-cv-355). its motion, Mentor pointed to an email from In support of Cox’s counsel stating that Cox wishes to continue pursuing the case and does not want the case to be dismissed. Mot. to Dismiss Ex. A, Email from Wayne Collins to Edward Taber, et al. (June 28, 2016), ECF No. 40-1 in 4:13-cv-355 (“Now, we can communicate with the court that the case should not be dismissed per her wish.”). Inexplicably, Cox’s counsel failed to communicate to the Court that Cox wished to continue pursuing the case. There is no indication in the present record that Cox has engaged another lawyer to represent her; the Court therefore presumes that she will be pro se if counsel is permitted to withdraw. Cox filed this action directly in MDL No. 2387, which is pending in the United States District Court for the Southern District of West Virginia and involves Coloplast Corp.’s pelvic support systems. transferred the The Judicial Panel on Multidistrict Litigation action to this multidistrict litigation proceeding, MDL No. 2004, because Cox’s action involves Mentor ObTape Transobturator Tape. this action are not yet Although pretrial proceedings in complete due to the breakdown of communication between Cox and her attorneys, the Court finds that the entire action should be remanded to the Court where venue is proper. In her short-form Complaint, Cox stated that venue would be proper in the Eastern District of Missouri had the action not been directly filed in MDL No. 2387. ECF No. 1 in 4:13-cv-355. Compl. ¶ 5, Thus, the action should be sent to the United States District Court for the Eastern District of Missouri. That Court, which will ultimately have to preside over the litigation and potential trial of a complex product liability case with a pro se plaintiff, is in the best position to evaluate whether counsel should be permitted to withdraw. That decision, and all future decisions with regard to this individual case, should be made by the United States District Court for the Eastern District of Missouri. 2 For these reasons, the Court suggests that this action should be remanded and sent to the United States District Court for the Eastern District of Missouri. brief chronicle of the coordinated This Order contains a proceedings to provide guidance to that court after remand. I. Brief Background of the Mentor ObTape MDL Mentor Worldwide LLC manufactured and sold a polypropylene mesh suburethral Tape, which was incontinence. cleared ObTape sling used product to called treat ObTape women with Transobturator stress urinary The United States Food and Drug Administration for sale in 2003 via its 510(k) regulatory process, and ObTape remained on the market in the United States until March 2006. Several years ago, women who had been surgically implanted with ObTape began filing lawsuits against Mentor, alleging that they had been injured by ObTape—primarily that they suffered infections caused by ObTape and that they were injured when ObTape eroded through their bodily tissues. In December 2008, the Judicial Panel on Multidistrict Litigation created MDL No. 2004 and transferred seventeen actions involving alleged injuries resulting from ObTape to this Court for consolidated and coordinated pretrial proceedings. See In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, 588 F. Supp. 2d 1374 (J.P.M.L. 2008). 3 After pretrial proceedings and a cases bellwether and transferred trial that approximately to this settled forty Court were mid-trial, additional resolved the original tag-along through cases settlement. Since then, MDL No. 2004 has grown to include more than 800 additional tag-along cases, and more than 200 cases remain open. The litigation was divided into separate phases, and cases from phases IV and V are still pending. In 2013, the Court tried a Phase III bellwether case to verdict. In 2016, the Court tried a Phase IV-1 bellwether case to verdict. II. Overview of Cox’s Case Cox States filed her District Virginia. The Complaint Court for Judicial in the Panel MDL No. Southern on 2387 in the District Multidistrict of United West Litigation transferred the action to this Court for consolidated pretrial proceedings. Cox’s case was designated as a Phase IV-6 case, with the following deadlines: Task Serve Plaintiff Fact Sheet and Executed Medical Authorization; provide Mentor with copies of all medical records in plaintiffs’ counsel’s possession Serve Defendant Fact Sheet Complete Plaintiff-Specific Fact Discovery Serve Plaintiff’s Expert Disclosures Serve Defendant’s Expert Disclosures; File Summary Judgment Motions and case-dispositive Daubert Motions Responses to Summary Judgment Motions Replies to Summary Judgment Motions 4 Deadline April 4, 2016 May 2, 2016 June 13, 2016 June 27, 2016 July 25, 2016 August 8, 2016 August 15, 2016 Mentor represents that Cox has not complied with any of her discovery obligations, but it is not clear from the present record whether representing obligations. Cox’s Cox, counsel, adequately which informed seeks to withdraw Cox of her from discovery Cox’s counsel did not seek an extension of any deadlines. CONCLUSION As discussed above, the Court suggests that this case be remanded and sent to the United States District Court for the Eastern District of Missouri. The Clerk of the Court shall provide a copy of this Order to the Clerk of the Judicial Panel on Multidistrict Litigation, and Cox’s counsel shall send a copy to Cox. IT IS SO ORDERED, this 26th day of July, 2016. S/Clay D. Land CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA 5

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