Dunham v. Ethicon, Inc. et al
MEMORANDUM OPINION & ORDER denying 21 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss and Other Sanctions; plaintiff has 30 days from the entry of this Order to submit to Ethicon a completed PFS with verifications and authorizations. The pla intiff is reminded that the PFS and other forms relevant to participating in this MDL are available at http://www.wvsd.uscourts.gov/MDL/ethicon/forms.html. Failure to comply with this Order may result in dismissal with prejudice upon motion by Ethicon. Signed by Judge Joseph R. Goodwin on 8/10/2017. (cc: counsel of record; any unrepresented party) (hkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
IN RE: ETHICON, INC.
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL NO. 2327
THIS DOCUMENT RELATES TO:
Dana Dunham v. Ethicon, Inc., et al.
Civil Action No. 2:12-cv-09301
MEMORANDUM OPINION & ORDER
Pending before the court is Defendants’ Motion to Dismiss and Other Sanctions [ECF No.
21] filed by defendants Ethicon, Inc. and Johnson & Johnson (collectively, “Ethicon”). The
plaintiff has responded to the motion [ECF No. 23], making it ripe for decision. For the reasons
stated below, Ethicon’s Motion [ECF No. 21] is DENIED.
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 over 50,000 cases currently
pending, approximately 30,000 of which are in the Ethicon MDL, MDL 2327. Managing
multidistrict litigation (“MDL”) 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’ responsibilities.
Pretrial Order (“PTO”) # 251 provides that plaintiffs in 400 cases in this MDL, including
this case, were required to submit a Plaintiff Fact Sheet (“PFS”) on or before May 25, 2017. See
PTO # 251 at ¶ A, No. 2:12-md-2327, entered Apr. 27, 2017 [ECF No. 3748]. PTO # 17 establishes
what must be included in the PFS and provides that, “[a]ny plaintiff who fails to comply with the
PFS 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 # 17 at ¶ 2(d), No. 2:12-md-2327,
entered Oct. 4, 2012 [ECF No. 281]. Here, the plaintiff failed to submit a completed PFS by May
25, 2017. Ethicon now moves for sanctions against the plaintiff for failure to comply with PTO #
251 and PTO # 17, specifically seeking dismissal of the plaintiff’s case with prejudice for failure
to serve a complete PFS.1 In response, the plaintiff’s counsel stated that they were unable to contact
the plaintiff to complete the PFS.
Federal Rule of Civil Procedure 37(b)(2) allows a court to sanction a party for failing to
comply with discovery orders. The dismissal of an action is an example of a possible sanction
under this rule. Before employing this severe sanction, however, a court must balance the
competing interests of the “court’s desire to enforce its discovery orders,” on the one hand, and
“the [plaintiff’s] rights to a trial by jury and a fair day in court,” on the other. Mut. Fed. Sav. &
Loan v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir. 1989). The Fourth Circuit has identified
four factors for the court to consider when confronting a motion to dismiss under Rule 37:
(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
Id. (citing Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 503–06 (4th Cir. 1977)).
Ethicon also moves for sanctions against the plaintiff due to her failure to communicate with Ethicon to schedule her
deposition. While PTO # 38 provides that the plaintiff must make a good faith effort to coordinate the scheduling of
depositions, PTO # 251 sets the deposition deadline as September 25, 2017. Thus, this argument is premature. Ethicon
may seek relief through a motion to compel the plaintiff to comply with PTO # 38.
In applying these factors to the case at bar, 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 Rules of Civil Procedure “should be construed and
administered to secure the just, speedy, and inexpensive determination of every action and
proceeding”). In turn, the parties must collaborate with the court “in fashioning workable
programmatic procedures” and cooperate with these procedures thereafter. Id. 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.”).
Pursuant to PTO # 251, the plaintiff was required to submit a completed PFS by May 25,
2017. The purpose of the PFS, as was the case in In re Phenylpropanolamine, is “to give each
defendant the specific information necessary to defend the case against it . . . [because] 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.” 460 F.3d at 1234. As
of the date of this Order, the plaintiff has not submitted a complete PFS, making it 78 days late.
Ethicon asks the court to dismiss the plaintiff’s case with prejudice. 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 the plaintiff’s counsel has not
had recent contact with 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.”). The plaintiff, who is represented by counsel, failed to comply with PTO # 251
and as of today has provided no indication that they intend to submit a PFS. 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 procedure
imposed by the court, [and t]herefore, we conclude that the [plaintiff] did not act in good faith.”).
The second factor—prejudice caused by noncompliance—also leans toward the order of
sanctions. Without a complete PFS, Ethicon 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 this case the delay has unfairly affected the progress
of the remaining plaintiffs in MDL 2327.
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. In
addition, the court expects to have to evaluate and dispose of a significant number of 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. However, application of the fourth factor—the effectiveness of less drastic
sanctions—counsels against the relief sought by Ethicon. Rather than imposing harsh sanctions at
this time, the court opts for a lesser sanction and allows the plaintiff one more chance to comply
with PTO # 251 and PTO # 17 subject to dismissal with prejudice, upon motion, if the plaintiff
fails to do so.
Alternative lesser sanctions, such as the ones outlined in Rule 37(b)(2)(A)(i–iv), are
impracticable, and therefore ineffective, in the context of an MDL containing approximately
30,000 cases. 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 Ethicon. Therefore, considering the administrative and
economic realities of multidistrict litigation, I conclude that affording the plaintiff a final chance
to comply with discovery, subject to dismissal with prejudice if they fail 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 Rules “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”).
It is ORDERED that Ethicon’s Motion to Dismiss and Other Sanctions [ECF No. 21] is
DENIED. It is further ORDERED that the plaintiff has 30 days from the entry of this Order to
submit to Ethicon a completed PFS with verifications and authorizations. The plaintiff is reminded
that the PFS and other forms relevant to participating in this MDL are available at
http://www.wvsd.uscourts.gov/MDL/ethicon/forms.html. Failure to comply with this Order
may result in dismissal with prejudice upon motion by Ethicon.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
August 10, 2017
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