Black, et al v. Boston Scientific Corporation

Filing 69

ORDER GRANTING 60 Plaintiffs' Motion for Order Permitting Voluntary Dismissal Without Prejudice. Signed by Judge Samuel H. Mays, Jr. on 3/26/2019.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JAMES L. BLACK and wife,
CATHLEEN J. BLACK
Plaintiffs,
v.
BOSTON SCIENTIFIC CORPORATION,
Defendant.

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No. 2:17-cv-2638

ORDER

Before the Court is Plaintiffs James L. Black and Cathleen J.
Black's November 30, 2018 Motion for Order Permitting Voluntary
Dismissal Without Prejudice.

(ECF No. 60.)

Defendant Boston

Scientific Corporation responded on December 14, 2018.
61.)

(ECF No.

Boston Scientific filed a supplemental response on December

17, 2018.

(ECF No. 63.)

Plaintiffs replied on December 31, 2018.

(ECF No. 68.)
For the following reasons, Plaintiffs’ Motion is GRANTED.
I.

Background
This is a products liability case.

Boston Scientific removed

to this Court about a year and a half ago.

(ECF No. 1.)

Since

then, Plaintiffs have not adequately participated in discovery.
Boston Scientific served Plaintiffs with its first discovery
requests on March 8, 2018.

(ECF No. 33.)

The Court entered an

amended scheduling order on June 5, 2018, and set Plaintiffs’
expert disclosure deadline for September 6, 2018.

(ECF No. 41 at

291.) 1
Plaintiffs

did

not

respond

to

Boston

Scientific’s

first

discovery requests and did not timely disclose their experts.

On

August 28, 2018, after affording Plaintiffs several extensions,
Boston Scientific filed a motion to compel Plaintiffs to respond.
(ECF No. 45.)

On September 10, 2018, Boston Scientific filed a

motion for summary judgment.

(ECF No. 48.)

Boston Scientific

based that motion on Plaintiffs’ failure to meet their expert
disclosure deadline.

(ECF No. 48-2 at 352.)

On September 14, 2018, Plaintiffs filed a motion to stay the
case for ninety days and extend the deadlines to respond to Boston
Scientific’s motion to compel and motion for summary judgment.
(ECF No. 50 at 363.)

Plaintiffs also asked the Court to stay and

to extend all deadlines in the Court’s amended scheduling order.
(Id.)

Plaintiffs represented that their lead counsel had taken a

sudden and unexpected medical leave of absence on August 29, 2018,
and that their other counsel had suffered a significant recurrence
of a medical condition and had been unavailable since September 3,
2018. 2

(ECF No. 50 at 364.)

1

Unless otherwise noted, all pincites are to the “PageID” number.
The ethics officer of the law firm to which Plaintiffs’ counsel belong filed
the motion to stay. (ECF No. 50 at 365.)
2

2

The Court Granted Plaintiffs’ motion to stay on October 1,
2018.

(ECF No. 54.)

Plaintiffs’ lead counsel returned from

medical leave on October 15, 2018.

(ECF No. 60-2 at 419.)

The

Court entered a second amended scheduling order on October 23,
2018, and set Plaintiffs’ expert disclosure deadline for December
14, 2018.

(ECF No. 55 at 385.)

Plaintiffs filed their Motion for Order Permitting Voluntary
Dismissal Without Prejudice on November 30, 2018.

(ECF No. 60.)

Boston Scientific asks the Court to deny the Motion or dismiss the
case with prejudice.
II.

(ECF No. 61 at 424.)

Jurisdiction
Under

28

U.S.C.

§

1332(a),

this

Court

has

original

jurisdiction of all civil actions between citizens of different
states “where the matter in controversy exceeds the sum or value
of

$75,000,

exclusive

of

interest

and

costs.”

28

U.S.C.

§ 1332(a)(1).
Plaintiffs are citizens of Tennessee.

(ECF No. 1-2 at 10.)

Boston Scientific is a Delaware corporation with its principal
place of business in Massachusetts.

(ECF No. 1 at 3.)

Plaintiffs

seek, among other things, “compensatory damages in the amount of
One Million Dollars ($1,000,000).” (ECF No. 1-2 at 17.)
parties

are

completely

diverse,

requirement is satisfied.
3

and

the

The

amount-in-controversy

III. Standard of Review
After a defendant serves an answer or motion for summary
judgment, a plaintiff may voluntarily dismiss a case without a
stipulation only if the court orders it.

Fed R. Civ. P. 41(a)(2).

Whether to order voluntary dismissal under Rule 41(a)(2) is in the
court’s sound discretion.

See Smith v. Holston Med. Grp., P.C.,

595 F. App’x 474, 477 (6th Cir. 2014).
“[T]he

purpose

of

Rule

41(a)(2)

[defendant] . . . from unfair treatment.”

is

to

protect

the

Bridgeport Music, Inc.

v. Universal-MCA Music Publ’g, Inc., 583 F.3d 948, 953 (6th Cir.
2009).

To that end, a court should not order voluntary dismissal

if doing so would cause the defendant to suffer “plain legal
prejudice . . . .”

Grover v. Eli Lilly & Co., 33 F.3d 716, 718

(6th Cir. 1994).
Plain legal prejudice takes two forms.

One is permitting

voluntary dismissal “[a]t the point when the law clearly dictates
a result” for the defendant.

Grover, 33 F.3d at 719.

The other

is a confluence of factors that shows the defendant would suffer
plain legal prejudice if the court ordered dismissal.

Id. at 718.

Those factors include, “the defendant's effort and expense of
preparation for trial, excessive delay and lack of diligence on
the part of the plaintiff in prosecuting the action, insufficient
explanation for the need to take a dismissal, and whether a motion
4

for summary judgment has been filed by the defendant.”

Id. (the

“Grover factors”).
IV.

Analysis
Boston Scientific contends that it would suffer plain legal

prejudice if the Court orders voluntary dismissal because the law
presently dictates a result for it and, separately, because the
Grover factors weigh in its favor.
A.

Whether the Law Clearly Dictates a Result for the Defendant
The

law

Scientific.

does

not

clearly

dictate

a

result

for

Boston

Boston Scientific contends that it is entitled to

summary judgment because Tennessee law requires expert testimony
to support a products liability claim and Plaintiffs’ expert
disclosure deadline has passed without the disclosure of their
experts.

Boston Scientific’s argument is not well-taken.

When

Plaintiffs filed their Motion, their expert disclosures were not
due.

That Plaintiffs’ expert disclosure deadline has since passed

is not of great significance.

Expert disclosure deadlines are

subject to revision; were the Court to consider Boston Scientific’s
motion for summary judgment, the Court might be inclined to deny
it and grant Plaintiffs additional time to designate an expert.
Boston Scientific has averred no absolute legal defense.
submits one based on a discretionary deadline.
courts

have

denied

motions

to
5

voluntarily

It

Although other
dismiss

without

prejudice, see, e.g., Culbertson v. Indian Path Hosp., Inc., No.
2:11-CV-275, 2013 WL 4604648, at *3 (E.D. Tenn. Aug. 28, 2013),
that would be unduly harsh here.
recent health problems.

Plaintiffs’ counsel have had

Plaintiffs’ potentially meritorious claim

should not be forever denied because they missed a deadline that
expired two weeks after they filed a motion to dismiss.
B.

The Grover Factors
The Grover factors weigh in favor of permitting Plaintiffs to

voluntarily dismiss their case without prejudice.
1. Boston Scientific’s Effort and Expense
Boston Scientific’s effort and expense do not justify forever
foreclosing Plaintiffs’ potentially meritorious claim.

Boston

Scientific cites several actions it has taken, but, considered
together, they do not favor dismissal with prejudice or denying
the Motion.
Boston Scientific cites the time spent preparing various
motions and briefs.

Those motions and briefs include: a notice of

removal 3; a motion to dismiss; a reply in support of a motion to
dismiss; an opposition to Plaintiffs’ motion to file an amended
complaint; a motion to compel Plaintiffs to respond to Boston
Scientific’s

first

discovery

requests;

an

opposition

to

3 This effort need not be duplicated.
Plaintiffs have stipulated that, if they
sue Boston Scientific again, they will refile in this Court. (See ECF No. 68
at 488 n.1.)

6

Plaintiffs’ motion to stay the case and extend deadlines; a motion
for summary judgment; and an opposition to Plaintiffs’ motion for
voluntary dismissal.
Although not insignificant, Boston Scientific’s motions and
briefs

are

not

sufficient

to

justify

voluntarily dismiss without prejudice.

denying

a

motion

to

The notice of removal and

motion to compel are slight documents.

The motion to dismiss,

accompanying reply, and corresponding opposition to the motion to
file an amended complaint were prepared at the preliminary stage
of the case.

They were not prepared for trial, which is the core

of the first Grover factor.

The effort that went into the motion

for summary judgment does not appear to have been extensive or
time-consuming.

The motion is based on one issue: failure to

timely disclose experts.

It is eleven pages long.

It relies on

a four-page statement of undisputed material facts.

There are no

exhibits.

It is clearly distinguishable from the effort in the

case Boston Scientific cites.

See Hart v. Bank of Am., N.A., No.

14-cv-2807-SHL-tmp, 2015 WL 12532149, *2 (W.D. Tenn. Nov. 17, 2015)
(“Defendant

submitted

149

pages

of

arguments,

affidavits

exhibits in support of its Motion for Summary Judgment.”).

or
The

work done to oppose the Motion at issue should count for little,
if anything, in the Grover analysis.

Considering it would require

weighing effort and expense that postdated the Motion.
7

Boston

Scientific

cites

the

time

and

effort

it

spent

collecting medical records and the duplicative work that might be
required if the case were dismissed without prejudice.

Boston

Scientific concedes that it will not need to collect again the
medical records it has already received.

Instead, it contends

that “it will have to again obtain executed authorizations from
Plaintiffs . . ., request additional medical records from any new
treating physicians for Plaintiffs since the dismissal, request
additional

medical

record

updates

from

the

very

treating

physicians Boston Scientific has already submitted a request to in
this litigation, and spend additional time reviewing the total
universe of medical records received to determine what will be
duplicative versus new.”

(ECF No. 61 at 432-33.)

That work would

be, for the most part, more work, not work that would have to be
done

again.

It

would

not

be

so

onerous

that

it

justifies

dismissing the case with prejudice or denying the Motion.
Boston Scientific contends that Plaintiffs’ inattention to
their discovery obligations caused Boston Scientific to “expend
time generating communications to Plaintiffs, by phone and email,
seeking the [discovery] responses,” to “tak[e] the laboring oar on
joint

filings”

related

to

extending

the

discovery

response

deadlines, and to “expend[] time and effort attempting to schedule
Plaintiffs’ depositions” that never occurred.
8

(Id. at 433.)

That

work

is

not

so

substantial

that

it

warrants

dismissal

with

prejudice or denial.
Boston Scientific cites the time and expense it incurred
developing its expert strategy.

That work could be recycled if

Plaintiffs sue Boston Scientific again.

The strategy was not

developed in response to anything Plaintiffs actually did or
disclosed.
Scientific’s

The expert strategy must therefore reflect Boston
independent

assessment

of

the

case.

It

can

be

redeployed in any future litigation.
Boston Scientific has incurred effort and expense and is
justifiably frustrated by Plaintiffs’ Motion.

That effort and

expense, however, is not so great that it favors forever barring
Plaintiffs’ potentially meritorious claim.
2.

Plaintiffs’ Excessive Delay and Lack of Diligence

Plaintiffs have delayed excessively and lacked diligence.
For

a

year

Scientific’s

and

a

first

half,

they

written

have

not

discovery

responded

request,

to

Boston

made

anyone

available for deposition, disclosed any experts, or made an effort
to prosecute their case.

That delay and lack of diligence is

mitigated by events beyond Plaintiffs’ control.
Plaintiffs’ lead counsel has had health and personal problems
during this litigation.

Plaintiffs’ other counsel took a medical

leave on September 3, 2018, and, as far as the Court is aware, has
9

not returned to active practice.

Not all of Plaintiffs’ delay and

lack of diligence can be attributed to their counsel’s absence.
Plaintiffs’ lead counsel failed to respond to written discovery
requests or make anyone available for deposition before he took
medical leave.

He has explained that delay was at least in part

because of his work on other cases.
454, 456.)

(See ECF No. 62-3 at 451,

However, Boston Scientific’s principal argument that

the case should be dismissed with prejudice is Plaintiffs’ failure
to timely disclose their experts after extensive opportunity to do
so.

Both counsel took medical leave before expert disclosures

were due.

From that point on, failure to disclose experts cannot

be fairly attributed to a lack of diligence.
3.

Explanation for the Need to Take a Dismissal

Plaintiffs explain that they need to take a dismissal because
they need to engage new lead counsel and obtain expert witnesses
and testimony.

(ECF No. 68 at 490.)

Given their lead counsel’s

health and personal problems and that this Motion was filed before
the expert disclosure deadline had passed, Plaintiffs’ reasons
favor granting their Motion.
4.

Whether a Motion for Summary Judgment Has Been Filed

A motion for summary judgment has been filed, but, for the
reasons previously discussed, this factor does not favor Boston
Scientific.

The motion for summary judgment does not appear to
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have required much time or effort and it is entirely based on
Plaintiffs’ failure to disclose experts.
V.

Conclusion
The

law

Scientific

does

and,

demonstrate

that

Plaintiffs’

Motion

not

clearly

considered
dismissal
for

together,
without

Order

Without Prejudice is GRANTED.

dictate

a

result

the

prejudice

Permitting

for

Grover
is

Voluntary

Boston
factors

warranted.
Dismissal

This case is DISMISSED WITHOUT

PREJUDICE.

So ordered this 26th day of March, 2019.

/s/_Samuel H. Mays, Jr._____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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