Ruiz-Lambert v. Ethicon, Inc. et al
Filing
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MEMORANDUM OPINION & ORDER The 35 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss Pursuant to Federal Rules 37 & 41 is GRANTED in part to the extent that they seek dismissal and is otherwise DENIED; the plaintiffs' case is DISMISSED with prejudice. Signed by Judge Joseph R. Goodwin on 3/6/2017. (cc: counsel of record; any unrepresented party) (kp)
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:
Tamara Ruiz-Lambert v. Ethicon, Inc., et al.
Civil Action No. 2:12-cv-03938
MEMORANDUM OPINION & ORDER
Pending before the court is the defendants’ Motion to Dismiss [ECF No. 35]
filed on January 17, 2017. The plaintiff’s counsel responded [ECF No. 37] and the
defendants replied [ECF No. 38]. The matter is now ripe for decision. For the
following reasons, the defendants’ Motion is GRANTED in part and DENIED in part.
I.
BACKGROUND
The plaintiff, Tamara Ruiz-Lambert, has not participated in the prosecution of
her case since it was selected for inclusion in the Ethicon Wave 4 cases, and her
whereabouts are currently unknown. Mot. Dismiss ¶ 4 [ECF No. 35]; Resp. 1–2 [ECF
No. 37]. She failed to serve a Plaintiff Fact Sheet as required by PTO Nos. 243 and
17 and has not responded to any of the defendants’ requests for production. Mot.
Dismiss ¶¶ 1–2. Further, the plaintiff failed to attend her own deposition. Id. at ¶ 3;
see also Notice of Dep. [ECF No. 34]. Ethicon now moves to dismiss with prejudice
pursuant to Rules 37(d)(1)(A)(i), 37(d)(1)(A)(ii), and 41(b) for failure to comply with a
court order, failure to comply with the Federal Rules of Civil Procedure, and failure
to attend her own deposition. Mot. Dismiss at ¶¶ 1–3. Alternatively, Ethicon moves
to dismiss pursuant to Rule 41(b) for failure to prosecute. Id. at ¶ 4. Ethicon requests
dismissal and reasonable expenses, including attorney’s fees and expenses, caused by
the plaintiff’s failure to appear at her deposition. Id. at 2. Plaintiff’s counsel
responded and only objected to the assignment of reasonable expenses for the
plaintiff’s failure to appear at her deposition. Resp. at 2. Plaintiff’s counsel did not
object to the factual assertions and did not object to dismissal. Id. at 1–4.
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
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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
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
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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
litigation effectively. This necessarily includes the power to dismiss cases where
litigants do not follow the court’s orders.”).
III.
DISCUSSION
First, although I do not have sufficient facts to determine that Ms. RuizLambert acted in bad faith, the plaintiff’s noncompliance by failing to attend her
deposition and failure to respond to requests for production was so severe that her
counsel did not object to dismissal, only to the assignment of fees. Such
noncompliance weighs heavily against the plaintiff. Additionally, Ms. Ruiz-Lambert’s
deposition is of utmost importance to the defendants’ case because it is she who was
implanted with the mesh at issue in this case and she who bears the burden of proof
in this case. Furthermore, as I have stressed before, MDLs exist to facilitate efficiency
in voluminous matters—efficient discovery is vital. When parties fail to comply with
discovery deadlines, a domino effect develops, resulting in the disruption of other
MDL cases. Parties must not be permitted to disregard discovery and thereby disrupt
MDL cases. Dismissal discourages the disregard illustrated in this case. Finally, I do
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not believe that less drastic sanctions are adequate in this situation. Lesser sanctions
cannot give the defendants back the preparation time they lost in this case.
Further, Rule 37(d)(3) of the Federal Rules of Civil Procedure states that
[i]nstead of or in addition to [dismissal], the court must require the party
failing to act, the attorney advising that party, or both to pay the
reasonable expenses, including attorney’s fees, caused by the failure,
unless the failure was substantially justified or other circumstances
make an award of expenses unjust.
Here, defendants admit they knew of plaintiff’s counsel’s inability to locate Ms. RuizLambert prior to the deposition but pressed forward nonetheless. These
circumstances make an award of reasonable expenses unjust.
IV.
CONCLUSION
For the foregoing reasons, I ORDER that the defendants’ Motion to Dismiss
[ECF No. 35] is GRANTED in part to the extent that they seek dismissal and is
otherwise DENIED. It is further ORDERED that the plaintiffs’ case is DISMISSED
with prejudice.
ENTER: March 6, 2017
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