Laffoon v. Ethicon, Inc. et al

Filing 73

ORDER To the extent the court has construed 62 RESPONSE by Danni Laffoon in opposition to 59 MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment on All Claims as a motion for extension of time and to remove the plaintiff's case from Wave 1, the court DENIES the Response. Signed by Judge Joseph R. Goodwin on 5/6/2016. (cc: counsel of record; any unrepresented party) (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE:

ETHICON, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL. No. 2327

THIS DOCUMENT RELATES TO:

Laffoon v. Ethicon, Inc., et al.

Civil Action No. 2:12-cv-485
ORDER

Before the court is a letter filed by the pro se plaintiff, Danni Laffoon. See Resp.
to Mot. Summ. J. [ECF No. 62] (“Resp.”). While the letter featured the plaintiff’s
response to the Motion for Summary Judgment [ECF No. 59] filed by the defendants,
Ethicon Inc. and Johnson & Johnson, it also included the plaintiff’s request for
additional time for expert disclosure and to have her case removed from
Wave 1. Because the court construed the letter as a motion to extend time
and to remove her case from the trial wave, the court ordered briefing. The
defendants responded to the plaintiff’s requests, but the plaintiff failed to reply.
Now that the deadlines for briefing have passed, the issues raised by the plaintiff
in her letter are ripe for adjudication. To the extent the letter is a motion
for an extension of time and to remove the plaintiff’s case from Wave 1, it is
DENIED.

I.
In her letter, the plaintiff asked the court for additional time for expert
disclosure. The court construed this request as a motion to extend time under Rule
6(b)(1)(B) of the Federal Rules of Civil Procedure. And in response, the defendants
argued the plaintiff failed to show she was entitled to an extension.
After a period of time expires, a party must show he or she “failed to act
because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). When deciding whether a
party’s neglect is excusable, a court “must examine ‘the danger of prejudice to the
[non-movant], the length of the delay and its potential impact on judicial proceedings,
the reason for the delay, including whether it was within the reasonable control of
the movant, and whether the movant acted in good faith.’” J.D. ex rel. Davis v.

Kanawha Cnty. Bd. of Educ., 517 F. Supp. 2d 822, 824 (S.D. W. Va. 2007) (alteration
in original) (quoting Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 533
(4th Cir. 1996)). Most important among these factors is the reason for the delay. Id.
And “inadvertence, ignorance of the rules, or mistakes construing the rules” do not
justify delay. Thompson, 76 F.3d at 533 (quoting Pioneer Inv. Servs. Co. v. Brunswick

Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993)).
The plaintiff’s expert disclosures were due February 1, 2016, and the plaintiff
did not file her letter until March, bringing her motion to extend time within the
ambit of Rule 6(1)(B). The plaintiff explains that she missed the deadline because she
did not understand what she was required to disclose:
I thought in my ignorance that simply telling the defendant’s counsel
the name of my expert witness during my deposition was all I needed to
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do. I was not trying to neglect my responsibilities nor was that ever my
intention. I have every desire to retain legal counsel and proceed to trial.
Resp. 2. Simply put, this explanation shows a lack of excusable neglect. See

Thompson, 76 F.3d at 533 (noting that a party’s ignorance of the rules will not justify
delay). Accordingly, the court DENIES the Response to the extent the court has
construed it as a motion for an extension of time.
II.
The plaintiff also asks the court to remove her case from Wave 1, prompting
the court to construe the Response as a motion to remove her case from Wave 1.
Again, the defendants asks the court to deny this request.
Generally, the court has only removed cases from waves with the consent of
and at the request of both sides. Considering the thousands of cases in this MDL
alone—only a fraction of the cases in all the MDLs concerning transvaginal mesh—
the waves play an important role in moving this litigation forward. Removal is only
justified in rare circumstances. Otherwise, the purpose of the waves would be
upended.
While there may be very rare circumstances that would justify removing a case
from its assigned wave, this case does not present those circumstances. Although the
plaintiff has faced hardship, her circumstances are not so rare, so insurmountable
that the court is compelled to remove her case from Wave 1. Accordingly, the court
DENIES the Response to the extent the court has construed it as a motion to remove
the plaintiff’s case from Wave 1.

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III.
To the extent the court has construed the plaintiff’s Response [ECF No. 62] as
a motion for an extension of time and to remove the plaintiff’s case from Wave 1, the
court DENIES the Response.
The court directs the clerk to send a copy of this Order to counsel or record and
any unrepresented party.
ENTER:

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May 6, 2016