Longo v. Ethicon, Inc. et al

Filing 41

MEMORANDUM OPINION AND ORDER The 37 RENEWED MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss Complaint Due to Plaintiff's Failure to Serve a Completed PFS and Comply With the Court's Orders is GRANTED, and Ethicon is DISMISSED with prejudice; the 36 MOTION by Ethicon, Inc., Johnson & Johnson for a Limited Extension of Discovery to Allow Defendants to Take the Depositions of Plaintiff and her Treaters After Discovery is Closed and the 39 MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment on All Claims are DENIED as moot. Signed by Judge Joseph R. Goodwin on 11/6/2017. (cc: counsel of record; any unrepresented party) (mek)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE:

ETHICON, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2327
______

THIS DOCUMENT RELATES TO:

Helen D. Longo v. Ethicon, Inc., et al.
Civil Action No. 2:12-cv-09266
MEMORANDUM OPINION AND ORDER
Pending before the court is Defendants’ Renewed Motion to Dismiss Plaintiff’s
Complaint Due to Plaintiff’s Failure to Serve a Completed PFS and Comply with the
Court’s Order filed by Ethicon, Inc. and Johnson and Johnson (collectively “Ethicon”)
on October 13, 2017. [ECF No. 37]. The plaintiff has not responded, and the deadline
for responding has expired. For the reasons stated below, the Ethicon’s Renewed
Motion is GRANTED.
Ethicon’s Motion arises from this court’s Order [ECF No. 33], entered on
September 12, 2017, denying Ethicon’s first Motion to Dismiss or for Other Relief for
failure to serve a Plaintiff Fact Sheet (“PFS”) in compliance with Pretrial Order
(“PTO”) # 251. 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 4–6 [ECF No. 33] (applying the Wilson

factors to the plaintiff’s case).1 Concluding that the first three factors weighed in favor
of sanctions as requested by Ethicon, I nevertheless declined to award the requested
sanction of dismissal with prejudice 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 plaintiff a final chance to
comply with the deadlines set forth in PTO # 251. I afforded her 30 days from the
entry of the Order to submit to Ethicon a completed PFS, with the caveat that failure
to do so may result in dismissal of Ethicon as a defendant in her case upon motion by
Ethicon. Despite this warning, the plaintiff has again failed to comply with this
court’s orders and did not provide Ethicon with her PFS within the 30-day period.
Consequently, Ethicon moved to dismiss with prejudice.
Because the less drastic sanction instituted against the plaintiff has had no
effect on her compliance with and response to this court’s discovery orders, which she
has continued to blatantly disregard, I find that dismissing Ethicon is now
appropriate. For the reasons explained in my September 12, 2017 Order [ECF No.
33], it is ORDERED that the defendants’ Renewed Motion to Dismiss [ECF No. 37] is
GRANTED, and Ethicon is DISMISSED with prejudice. Defendants’ Motion for
Limited Extension of Discovery to Allow Defendants to Take the Depositions of

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
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 503–06).
1

2

Plaintiff and her Treaters After Discovery is Closed [ECF No. 36] and Defendants’
Motion for Summary Judgment on All Claims [ECF No. 39] are DENIED as moot.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and to any unrepresented party.
ENTER:

3

November 6, 2017