Lupia v. C. R. Bard, Inc. et al
ORDER Sofradim's Motion for immediate dismissal with prejudice is GRANTED as Moulded; the plaintiff is directed to pay Sofradim a $1,000.00 monetary sanction; in the event the plaintiff does not pay Sofradim $1,000.00 within 30 days , the plaintiff's claims against Sofradim shall be dismissed with prejudice without further notice to the plaintiff; the Clerk is directed to post this order on the court's website for 30 days. Signed by Judge Joseph R. Goodwin on 2/13/2017. (cc: counsel of record; plaintiff via certified mail, return receipt requested) (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
C. R. BARD, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2187
THIS DOCUMENT RELATES TO:
Paula Lupia v. C. R. Bard, Inc., et al.
Civil Action No. 2:12-cv-00090
On January 11, 2017, the court conducted a mandatory settlement conference as to the
plaintiff’s claims against defendant Sofradim Production SAS (“Sofradim”) only,1 which the
plaintiff was ordered to attend. When the plaintiff, who is pro se, did not appear in person at the
settlement conference, counsel for the defendant, Sofradim, made a motion to dismiss the
plaintiff’s case with prejudice. For the reasons stated below, Sofradim’s motion is GRANTED as
This case resides in the Bard MDL, 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 over 60,000 cases
currently pending, approximately 8,000 of which are in the Bard MDL. There are only a handful
of cases pending against Tissue Science Laboratories Limited, Covidien LP, and/or Sofradim
(collectively referred to as the “Covidien defendants”). Managing this many cases in multidistrict
Plaintiff also filed a claim against C. R. Bard, Inc., which remains pending and was not subject to the settlement
litigation requires the court to streamline certain procedures, such as ordering mandatory
settlement conferences, to improve efficiency for the parties and the court.
On August 29, 2016, I entered Pretrial Order (“PTO”) # 219 directing all plaintiffs in the
Bard MDL alleging claim(s) against the Covidien defendants to provide those defendants with
proof of product identification and relevant medical records on or before September 22, 2016.
MDL 2187, PTO # 219 ¶ A [ECF No. 2248]. On that same day, I entered PTO # 220 ordering
those same parties to engage in good faith settlement negotiations with the Covidien defendants
on or before October 13, 2016. MDL 2187, PTO # 220 1, 3 [ECF No. 2253]. On November 30,
2016, I entered PTO # 231 notifying the plaintiff of a mandatory settlement conference on January
11, 2017 and her obligation to attend. MDL 2187, PTO # 231 [ECF No. 2802]. I entered the PTO
in the main MDL and the plaintiff’s individual case. PTO # 231 explicitly states, “individual
plaintiffs whose cases are scheduled for a settlement conference shall appear in person for the
settlement conference” and that “any plaintiff who fails to comply with this PTO may be subject
to a substantial sanction, including dismissal with prejudice.” Id. at 2.
Ms. Lupia did not engage in good faith settlement discussions with the Covidien
Defendants, nor did she appear in person for the mandatory settlement conference with them on
January 11, 2017. During this proceeding, the court called the plaintiff’s name in the courtroom
and had a Court Security Officer call the plaintiff’s name three times in the lobby outside the
courtroom. The plaintiff was not present. To date, Ms. Lupia has also failed to provide the Covidien
defendants with proof of product identification and relevant medical records pursuant to court
order. Sofradim moved for sanctions against Ms. Lupia, specifically requesting dismissal of the
plaintiff’s case with prejudice.
Federal Rule of Civil Procedure Rule 16(a)(5) permits the court to issue orders regarding
pretrial conferences for the purpose of facilitating settlement. Fed. R. Civ. P. 16(a)(5). Rule 16(f)
provides a court may issue any just order, including those authorized by Rule 37(b)(2)(A)(ii)–(vii)
if a party fails to appear at a pretrial conference or fails to obey a scheduling or other pretrial order.
Id. 16(a)(5), (f). Rule 37(b)(2) sets forth a list of sanctions available when a party fails to comply
with a court order, including “dismissing the action or proceeding in whole or in part.” Fed. R.
Civ. P. 37(b)(2)(A)(v). Before levying dismissal or default as a sanction under Rule 37, a court
must first consider four factors:
(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
Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (citing
Wilson v. Volkswagon of America, Inc., 561 F.2d 494, 503–04 (4th Cir. 1977), cert. denied, 434
U.S. 102 (1978)).
In applying these factors to this case, I must be cognizant of the realities of multidistrict
litigation and the unique problems an MDL judge faces. Specifically, when handling seven MDLs,
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 settlement conferences
and 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 their deadlines—“are the engine that
drives disposition on the merits.” Id. at 1232. 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.”).
PTO # 231 required Ms. Lupia to attend a mandatory settlement conference on January 11,
2017. PTO # 231 explicitly stated: “any plaintiff who fails to comply with this PTO may be subject
to a substantial sanction, including dismissal with prejudice.” PTO # 231 at 2. Applying the Wilson
factors to these facts and bearing in mind the unique context of multidistrict litigation, I conclude
that sanctions under Rule 37 are justified.
The first factor—bad faith—is difficult to ascertain given that the plaintiff was not present
in court to respond to the defendants’ motion. While I am cognizant of the difficulties that are
presented by a plaintiff not being represented by counsel, those difficulties do not excuse the
plaintiff herself from her obligation to pursue her case actively. See Link v. Wabash R.R. Co., 370
U.S. 626, 634 n.10 (1962) (“[A] civil plaintiff may be deprived of his claim if he failed to see to it
that his lawyer acted with dispatch in the prosecution of his lawsuit.”). Simply stated, a pro se
litigant is not immune from sanctions for failure to comply with court orders. “Pro se litigants are
entitled to some deference from courts. But they as well as other litigants are subject to the time
requirements and respect for court orders without which effective judicial administration would
be impossible.” Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (internal citations omitted).
PTO # 231 expressly states that failure to attend the mandatory settlement conference could result
in sanctions. This court spent considerable resources attempting to notify the plaintiff of this
mandatory settlement conference and the consequences of failing to comply with my order. The
plaintiff nevertheless failed to comply. Therefore, I must weigh the first factor against the plaintiff.
The second factor—prejudice caused by noncompliance—also leans toward an order for
sanctions. The plaintiff had two-months’ notice of the mandatory settlement conference, yet failed
to engage with the Covidien defendants in good faith settlement negotiations or communicate any
inability to attend the mandatory settlement conference before the October 13, 2016 meet and
confer deadline. See PTO # 220 ¶ 2. The Covidien defendants, having no indication that the
plaintiff would fail to attend, spent those months preparing for settlement negotiations. See Defs.’
Mot. at 2. The Covidien defendants have also expended substantial resources on motions, lawyers,
travel and time spent attempting to reach the plaintiff unsuccessfully. Furthermore, because the
Covidien defendants have had to divert their attention away from responsive plaintiffs to attempt
to reach the plaintiff in this action, the delay has unfairly impacted the progress of the remaining
cases in this MDL.
The adverse effect on the management of the MDL as a whole segues to the third factor:
the need to deter this sort of noncompliance. When parties fail to comply with deadlines provided
in pretrial orders, a domino effect develops, resulting in the disruption of other MDL cases.
Furthermore, I expect to have to evaluate and dispose of numerous motions similar to the one at
bar, thereby directing my time and resources to noncompliant plaintiffs at the expense of other
plaintiffs in this MDL. This cumbersome pattern goes against the purpose of MDL procedure, and
I must deter any behavior that would allow it to continue. See H.R. Rep. No. 90-1130, at 1 (1967),
reprinted in 1968 U.S.C.C.A.N. 1898, 1901 (stating that the purpose of establishing MDLs is to
“assure the uniform and expeditious treatment” of the included cases).
Wilson’s fourth factor directs the court to consider the effectiveness of lesser sanctions. In
light of the evidence, the court opts to impose a monetary sanction on the plaintiff in the amount
of $1,000.00 rather than the greater sanction of immediate dismissal with prejudice. I find that
$1000.00 is a minimally representative valuation of the Covidien defendants’ expenses. This
number accounts for the time and money the Covidien defendants spent identifying the plaintiff as
one of the non-compliant plaintiffs; assessing the effect of her discovery violations; and preparing
an argument for sanctions. All knowledgeable MDL counsel would consider these efforts, which
would have been avoided had the plaintiff followed the court’s order, to be worth $1000.00, at the
least. This course of action is consistent with PTO # 223, which warned the plaintiff of the
possibility of a substantial sanction. PTO # 223 (“[A]ny plaintiff who fails to comply with this
PTO may be subject to a substantial sanction, including dismissal with prejudice.”). Accordingly,
I find that the plaintiff shall pay a sanction of $1,000.00 to Sofradim, which if not paid within 30
days of this order, shall result in dismissal of the plaintiff’s case against Sofradim with prejudice
without further notice.
It is ORDERED that Sofradim’s motion for immediate dismissal with prejudice is
GRANTED as Moulded. It is ORDERED that the plaintiff pay Sofradim a $1,000.00 monetary
sanction.2 It is further ORDERED that, in the event the plaintiff does not pay Sofradim $1,000.00
within 30 days, the plaintiff’s claims against Sofradim shall be dismissed with prejudice without
further notice to the plaintiff.
The court DIRECTS the Clerk to send a copy of this Order to plaintiff via certified mail,
return receipt requested, and to counsel. The court further DIRECTS the Clerk to post this order
on the court’s website for 30 days.
February 13, 2017
The plaintiff may contact plaintiffs’ leadership counsel regarding payment.
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