Benge et al v. Boston Scientific Corporation
MEMORANDUM OPINION AND ORDER granting in part and denying in part 19 MOTION by Boston Scientific Corporation to Dismiss, as more fully set forth herein; the plaintiffs have 30 business days from the entry of this Order to pay BSC $1000 as mini mal partial compensation for the reasonable expenses caused by the plaintiffs' failure to comply with discovery; in the event that the plaintiffs do not provide adequate or timely payment, the court will consider ordering a show-cause hearing in Charleston, West Virginia, upon motion by the defendants; plaintiffs have a final 30 business days from the entry of this Order to submit to BSC a completed PPF; failure to comply with this Order will result in dismissal upon motion by the defendant ; and plaintiffs' counsel is directed to send a copy of this Order to the plaintiffs via certified mail, return receipt requested, and file a copy of the receipt. Signed by Judge Joseph R. Goodwin on 10/17/2016. (cc: counsel of record; any unrepresented party) (mek)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BOSTON SCIENTIFIC CORP.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2326
THIS DOCUMENT RELATES TO:
Benge, et al. v. Boston Scientific Corp.
Civil Action No. 2:12-cv-8627
MEMORANDUM OPINION AND ORDER
Pending before the court is Boston Scientific Corp.’s (“BSC”) Motion to Dismiss
for Failure to Timely Serve the Plaintiff Profile Form [ECF No. 19]. The plaintiffs
have responded to the motion [ECF No. 20], making it ripe for decision. For the
reasons stated below, the motion is GRANTED in part and DENIED in part.
BSC’s Motion arises from this court’s Order [ECF No. 18], entered on July 18,
2016, denying BSC’s Motion for Sanctions, including monetary penalties, dismissal
and any other sanction deemed appropriate by the court, for failure to serve a Plaintiff
Profile Form (“PPF”) in compliance with Pretrial Order (“PTO”) # 16. In reaching this
decision, I relied on Wilson v. Volkswagen of America, Inc., 561 F.2d 494 (4th Cir.
1977), in which the Fourth Circuit identified four factors that a court must consider
when reviewing a motion to dismiss on the basis of noncompliance with discovery.
See Order at 4–7 [ECF No. 18] (applying the Wilson factors to Ms. Benge’s case).1
The Wilson factors are as follows: (1) Whether the noncomplying party acted in bad faith; (2) the
amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry
Concluding that the first three factors weighed in favor of sanctions as requested by
BSC, I nevertheless declined to award the requested sanctions of either dismissal or
monetary sanctions because it would offend the court’s duty under Wilson’s fourth
factor, which is to consider the effectiveness of lesser sanctions. In recognition of this
duty, I gave the plaintiffs a final chance to comply with the deadlines set forth in PTO
# 16. I afforded the plaintiffs 30 business days from the entry of the Order to submit
to BSC a completed PPF, with the caveat that a failure to do so may result in
dismissal of her case upon motion by BSC. Despite this warning, the plaintiffs failed
to comply with this court’s orders and did not provide BSC with her PPF within the
30-day period. Consequently, BSC moved to dismiss this case. In response, the
plaintiffs’ counsel assert that they have only recently been able to get back in contact
with their clients, and are now prepared to file the PPF.
Federal Rule of Civil Procedure 37(b)(2) provides that a court may issue “just
orders” when a party fails to provide or permit discovery. Fed. R. Civ. P. 37(b)(2)(A).
In the MDL world, this authority has particular significance. An MDL judge bears
the “enormous” task of “mov[ing] thousands of cases toward resolution on the merits
while at the same time respecting their individuality,” and to carry out this task in a
smooth and efficient manner, the judge must establish and, more importantly,
enforce rules for discovery. In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d
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) (citing Wilson, 561 F.2d at
1217, 1231 (9th Cir. 2006). Rule 37(b)(2) supplies the tool for this enforcement,
allowing a judge to impose sanctions when a party fails to comply with the court’s
discovery orders. See id. at 1232 (“[A] willingness to resort to sanctions, sua sponte if
necessary, may ensure compliance with the [discovery] management program.”
(internal citation omitted)); 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.”).
Although I previously warned the plaintiffs that failure to submit the PPF to
BSC within the previously ordered deadlines could result in dismissal, the fourth
Wilson factor—considering whether less drastic sanctions would be effective—leads
me to conclude that the plaintiffs should be given one final opportunity to submit the
PPF to BSC. I reach this conclusion because of the plaintiffs’ counsels’ assertions that
the PPF is nearly ready to be submitted to BSC upon entry of this order. Accordingly,
the plaintiffs must submit the PPF to BSC within 30 days from entry of this Order,
or I will dismiss their case with prejudice.
The circumstances of this case, however, lead me to impose the sanction
provided in Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure, which requires
a party failing to provide discovery to pay “the reasonable expenses, including
attorney’s fees, caused by the [discovery] failure, unless the failure was substantially
justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(b)(2)(C). The plaintiffs have not provided substantial justification for their failure
to timely submit to discovery. Furthermore, there are no circumstances that make
this sanction unjust. Although the plaintiffs contend the discovery violation will soon
be cured, it nevertheless resulted in litigation expenses for BSC. Applying Rule
37(b)(2)(C) ensures that the disobeying party, rather than the innocent party, bears
those costs. Accordingly, BSC’s Motion to Dismiss is DENIED in part in regards to
dismissing the plaintiffs’ claim and GRANTED in part to the extent that it seeks the
payment of reasonable expenses.
To bring this Motion to Dismiss, BSC expended time and money identifying
Ms. Benge as one of the non-compliant plaintiffs; assessing the effect of her discovery
violations; drafting multiple motions to dismiss or for sanctions; and serving the
motions. Based on my understanding of the economic and administrative realities of
multidistrict litigation, I conclude that a more representative, though still minimal,
valuation of BSC’s expenses, and the proper sanction in this case, is in the amount of
As explained above, BSC’s Motion to Dismiss [ECF No. 19] is GRANTED in
part and DENIED in part. It is ORDERED that the plaintiffs have 30 business days
from the entry of this Order to pay BSC $1000 as minimal partial compensation for
the reasonable expenses caused by the plaintiffs’ failure to comply with discovery.2 In
the event that the plaintiffs do not provide adequate or timely payment, the court will
consider ordering a show-cause hearing in Charleston, West Virginia, upon motion
The court directs BSC to communicate with plaintiffs’ leadership regarding payment instructions.
by the defendants. It is further ORDERED that the plaintiffs have a final 30 business
days from the entry of this Order to submit to BSC a completed PPF. Failure to
comply with this Order will result in dismissal upon motion by the defendant. Finally,
it is ORDERED that plaintiffs’ counsel send a copy of this Order to the plaintiffs 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: October 17, 2016
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