Manning v. Boston Scientific Corporation
Filing
23
ORDER denying 21 MOTION by Boston Scientific Corporation for Sanctions for Plaintiff's Failure to Timely Serve Plaintiff Profile Form, as more fully set forth herein; the plaintiff has 30 business days from the entry of this Order to submit to Boston Scientific a completed PPF and failure to comply with this Order will result in dismissal with prejudice upon motion by the defendant; plaintiff's counsel is directed to send a copy of this Order to the plaintiff via certified mail, return receipt requested, and file a copy of the receipt. Signed by Judge Joseph R. Goodwin on 10/13/2015. (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:
BOSTON SCIENTIFIC CORP.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2326
THIS DOCUMENT RELATES TO:
Pamela Teresa Manning v. Boston Scientific Corp.
Civil Action No. 2:12-cv-04076
ORDER
Pending before the court is Boston Scientific’s Motion for Sanctions [ECF No. 21]. For the
reasons stated below, the Motion for Sanctions is DENIED.
I.
Background
This case resides in 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 nearly 70,000 cases
currently pending. Managing multidistrict litigation requires the court to streamline
certain litigation procedures in order to improve efficiency for the parties and the court.
Some of these management techniques simplify the parties’ discovery responsibilities.
Pretrial Order (“PTO”) # 16, for example, provides that each plaintiff in this MDL must
submit a Plaintiff Profile Form (“PPF”) to act as interrogatory answers under Rule 33
of the Federal Rules of Civil Procedure and responses to requests for production
under Rule 34 of the Federal Rules of Civil Procedure. The parties jointly drafted
the requirements for PTO # 16, and I entered it as applicable to every one of the thousands of cases
in this MDL.
The plaintiff filed her Short Form Complaint on August 10, 2012, and her PPF was due on
or before October 10, 2012. To date, the plaintiff has wholly failed to submit a completed PPF,
making her PPF 1,099 days late. Boston Scientific now moves for sanctions against the plaintiff,
requesting a reasonable monetary penalty, dismissal of the plaintiff’s case, or both.
II.
Legal Standard
Rule 37(b)(2) of the Federal Rules of Civil Procedure allows a court to sanction a party for
failing to comply with discovery orders. Before levying a harsh sanction under Rule 37—such as
dismissal or default—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
sanctions.
Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989).
In applying these factors to this case, I must be particularly cognizant of the
realities of multidistrict litigation and the unique problems an MDL judge faces. 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”). 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 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
2
Rules of Civil Procedure “should be construed and administered 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 the deadlines set forth
therein—“are the engine that drives disposition on the merits.” Id. 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
PTO # 16 requires each plaintiff to submit a completed PPF within sixty days of filing a
Short Form Complaint. Here—as in other MDLs—the purpose of the PPF is “to give each
defendant the specific information necessary to defend the case against it . . . [and] without this
device, a defendant [is] unable to mount its defense because it [has] no information about the
plaintiff
or
the
plaintiff’s
injuries
outside
the
allegations
of
the
complaint.”
In re Phenylpropanolamine, 460 F.3d at 1234. To this end, PTO # 16 provided that “[a]ny plaintiff
who fails to comply with the PPF obligations under this Order may, for good cause shown,
be subject to sanctions, to be determined by the court, upon motion of the defendants.”
PTO # 16 ¶ 1.i.
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As of the date of this Order, the plaintiff’s PPF is 1,099 days late. Accordingly, Boston
Scientific moves for sanctions for this violation of PTO # 16. The plaintiff responds that these
sanctions are not appropriate because the sole reason for the discovery deficiency is plaintiff’s
counsel’s inability to obtain a response from the plaintiff despite multiple attempts.
Applying the Wilson factors to these facts and bearing in mind the unique context of
multidistrict litigation, I conclude that although recourse under Rule 37 is justified, the plaintiff
should be afforded one more chance to comply with discovery before further sanctions are
imposed.
The first factor, bad faith, is difficult to ascertain, given that plaintiff’s counsel has been
unable to contact the plaintiff. However, counsel’s inability to contact the plaintiff is not an excuse
and instead indicates a failing on the part of the plaintiff, who has an obligation to provide counsel
with any information needed to prosecute her case, including up-to-date contact information. 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.”). Furthermore, “[a]ll attorneys representing parties to this litigation . . . bear the
responsibility to represent their individual client or clients.” PTO # 4 ¶ C. This includes awareness
of and good faith attempts at compliance with all PTOs and other court orders. PTO # 16—which
was jointly drafted by the leadership counsel of both parties—expressly states that failure to timely
submit a PPF could result in sanctions. The plaintiff nevertheless failed to comply. Although these
failures do not appear to be callous, the fact that they were blatant and in full knowledge of the
court’s orders and discovery deadlines leads me to weigh the first factor against the plaintiff. See
In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867 (8th Cir.
2007) (“While not contumacious, perhaps, this is a blatant disregard for the deadlines and
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procedure imposed by the court, [and t]herefore, we conclude that the [plaintiffs] did not act in
good faith.”).
The second factor—prejudice caused by noncompliance—also leans toward the order of
sanctions. Without a PPF, Boston Scientific is “unable to mount its defense because
it [has] no information about the plaintiff or the plaintiff’s injuries outside the allegations of the
complaint.” In re Phenylpropanolamine, 460 F.3d at 1234. Furthermore, because
Ethicon has had to divert its attention away from timely plaintiffs and onto an individual
untimely plaintiff, the delay has unfairly impacted the progress of the remaining plaintiffs 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. A number of plaintiffs in this MDL have failed to supply a PPF at all.
Consequently, the court expects to have to evaluate and dispose of numerous motions similar to
the one at bar, thereby directing its 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).
Application of the first three factors demonstrates that this court is justified in sanctioning
the plaintiff. Imposing substantial monetary sanctions or outright dismissal would offend the
court’s duty under Wilson’s fourth factor, which is to consider the effectiveness of lesser sanctions.
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Accordingly, rather than imposing harsh monetary sanctions at this time, the court opts for a lesser
sanction and allows the plaintiff one more chance to comply with PTO # 16 subject to dismissal
with prejudice, upon motion by the defendant, if she fails to do so. This course of action is
consistent with PTO # 16, which warned plaintiffs of the possibility of dismissal upon failure to
submit a timely PPF. PTO # 16 ¶ 1.g (“If a plaintiff does not submit a PPF within the time specified
in this Order, defendants may move immediately to dismiss that plaintiff’s case without first
resorting to [the specified] deficiency cure procedures.”).
Alternative lesser sanctions, such as the ones proposed in Rule 37(b)(2), are simply
impracticable—and ineffective—in the context of an MDL of this size. The court cannot spare its
already limited resources enforcing and monitoring sanctions that are qualified by the individual
circumstances of each case, nor would it be fair for the court to place this responsibility on Boston
Scientific. With the administrative and economic realities of multidistrict litigation in mind, I
conclude that affording the plaintiff a final chance to comply with discovery, subject to dismissal
with prejudice if she fails to do so, is a “just order” under Rule 37 and in line with the Federal
Rules of Civil Procedure as a whole. See Fed. R. Civ. P. 1 (stating that the Federal Rules of Civil
Procedure “should be construed and administered to secure the just, speedy, and inexpensive
determination of every action and proceeding”).
IV.
Conclusion
It is ORDERED that Boston Scientific’s Motion for Sanctions [ECF No. 21] is DENIED.
It is further ORDERED that the plaintiff has 30 business days from the entry of this Order to
submit to Boston Scientific a completed PPF. Failure to comply with this Order will result in
dismissal with prejudice upon motion by the defendant. Finally, it is ORDERED that plaintiff’s
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counsel send a copy of this Order to the plaintiff via certified mail, return receipt requested, and
file a copy of the receipt.
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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October 13, 2015
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