Duncan et al v. Ethicon, Inc. et al
MEMORANDUM OPINION & ORDER The 34 MOTION by Ethicon, Inc., Ethicon, LLC, Johnson & Johnson to Dismiss or for Other Relief is GRANTED and the plaintiffs' case is DISMISSED with prejudice. Signed by Judge Joseph R. Goodwin on 2/14/2017. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
PELVIC REPAIR SYSTEMS
PRODUCT LIABILITY LITIGATION
MDL No. 2327
THIS DOCUMENT RELATES TO:
Debbie Duncan, et al. v. Ethicon, Inc., et al.
Civil Action No. 2:12-cv-04904
MEMORANDUM OPINION & ORDER
Pending before the court is the defendants’ Motion to Dismiss or for Other
Relief [ECF No. 34] filed on January 4, 2017. Plaintiffs’ counsel filed a Statement of
Non-Opposition to Defendant Ethicon, Inc.’s Motion to Dismiss or for Other Relief
[ECF No. 37]. The matter is now ripe for decision. For the following reasons, the
defendants’ Motion is GRANTED.
Ethicon initially served a notice of deposition to depose Ms. Duncan on
December 15, 2016. Notice Video Deposition [ECF No. 30]. Ethicon later amended
that date to December 13, 2016; however, the plaintiff failed to attend that deposition
despite receiving notice. See Mot. Dismiss, Ex. D. Ethicon now moves to dismiss this
case because, among other reasons, Ms. Duncan failed to attend her deposition.
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. Fed. R. Civ. P.
37(d)(1)(A). Permissible sanctions for failing to attend a deposition 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
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
litigation effectively. This necessarily includes the power to dismiss cases where
litigants do not follow the court’s orders.”).
First, although I do not have sufficient facts to determine that the plaintiffs
acted in bad faith, the plaintiffs’ noncompliance was so severe that their counsel filed
a Statement of Non-Opposition to Ethicon’s Motion—a Motion that sought to dismiss
this case with prejudice. Such noncompliance weighs heavily against the plaintiffs.
Additionally, Ms. Duncan’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 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.1
For the foregoing reasons, I ORDER that the defendants’ Motion to Dismiss or
for Other Relief [ECF No. 34] is GRANTED and that the plaintiffs’ case is
DISMISSED with prejudice.
The defendants also argue that I should dismiss the case because the plaintiffs did not serve a PFS
before the November 28, 2016, deadline established in PTO No. 243. Because I determine that Ms.
Duncan’s failure to attend the deposition is sufficient to invoke dismissal, I need not address that
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
February 14, 2017
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