Deakins et al v. Ethicon, Inc. et al

Filing 42

MEMORANDUM OPINION & ORDER denying 35 MOTION by Ethicon, Inc., Ethicon, LLC, Johnson & Johnson to Dismiss or for Other Relief, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 3/8/2017. (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 SYSTEMS
PRODUCT LIABILITY LITIGATION
MDL No. 2327
______________________________________________________________________________
THIS DOCUMENT RELATES TO:

Lucille Deakins, et al. v. Ethicon, Inc., et al.

Civil Action No. 2:12-cv-03605

MEMORANDUM OPINION & ORDER
Pending before the court is the defendants’ Motion to Dismiss or for Other
Relief [ECF No. 35]. The plaintiff’s counsel responded [ECF No. 38] and the
defendants replied [ECF No. 41]. The matter is now ripe for decision. For the
following reasons, the defendants’ Motion is DENIED.
I.

BACKGROUND

In this case, Ethicon repeatedly scheduled or attempted to schedule Ms.
Deakins’s deposition; however, the health issues of Ms. Deakins and her attorney
resulted in the postponement of those depositions. See Mot. Dismiss 2–6; Resp. 2–4.
Importantly, Ms. Deakins relies on her son because of a previously suffered stroke,
and Ms. Deakins’s in-home care provider provided a letter on January 31, 2017,
stating that Ms. Deakins’s health issues kept her homebound and that Ms. Deakins
is not competent to give a deposition. Resp. 3. Prior to the defendants’ Motion, the
plaintiffs and defendants unsuccessfully negotiated in an effort to remove this case
from Wave 4 of the Ethicon MDL. Id.

II.

LEGAL STANDARD

Rule 37(d)(1) of the Federal Rules of Civil Procedure permits me to sanction a
party who fails to show up for a properly noticed deposition or who fails to answer
interrogatories or requests for inspection. Fed. R. Civ. P. 37(d)(1)(A). Permissible
sanctions for these actions include dismissal of the action. Fed. R. Civ. P. 37(d)(3).
Where dismissal is a potential sanction, courts have narrower discretion because “the
district court’s desire to enforce its discovery orders is confronted head-on by the
party's rights to a trial by jury and a fair day in court.” 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 (4th Cir. 1977)); see also Viswanathan v.
Scotland Cty. Bd. of Educ., 165 F.R.D. 50, 53 (M.D.N.C. 1995), aff’d, 76 F.3d 377 (4th
Cir. 1996) (applying the Wilson factors where a plaintiff failed to attend his own
deposition). To determine whether dismissal is warranted, courts must consider “(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.”

Richards & Assocs., Inc., 872 F.2d at 92.
The realities of multidistrict litigation and the unique problems an MDL judge
faces weigh heavy when balancing the four factors. Specifically, when handling seven
MDLs, each containing thousands of individual cases, case management becomes of
utmost importance. See In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d

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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”); 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). 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 Phenylpropanolamine, 460 F.3d. 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.”); 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 1232; see also
Fed. R. Civ. P. 1. Pretrial orders—and the parties’ compliance with those orders and
the deadlines set forth therein—“are the engine that drives disposition on the merits.”

In re Phenylpropanolamine, 460 F.3d 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

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litigation effectively. This necessarily includes the power to dismiss cases where
litigants do not follow the court’s orders.”).
III.

DISCUSSION

First, the non-complying party did not act in bad faith in this case. The health
issues at play in this case are serious, and they certainly provide a valid excuse for
Ms. Deakins’s postponed depositions. Second, while the deposition of Ms. Deakins is
crucial, the plaintiffs have not foreclosed future depositions and do not appear to be
actively hindering the defendants’ attempts to gather evidence. Furthermore, this is
not conduct worthy of deterrence. While MDL cases require efficient management,
that efficient management should not punish the severely ill. Finally, less drastic
sanctions are appropriate where, as here, the delay is not a result of the plaintiffs’
negligence or attempts to hinder the litigation; indeed, I FIND that sanctions are not
appropriate in this case.
IV.

CONCLUSION

For the foregoing reasons, I ORDER that the defendants’ Motion to Dismiss
[ECF No. 35] is DENIED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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March 8, 2017