Dunham v. Ethicon, Inc. et al

Filing 36

MEMORANDUM OPINION AND ORDER The 31 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss With Prejudice is GRANTED IN PART in that Ethicon is DISMISSED with prejudice and DENIED IN PART as to other sanctions. Signed by Judge Joseph R. Goodwin on 10/12/2017. (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:

Dana Dunham v. Ethicon, Inc., et al.
Civil Action No. 2:12-cv-09301
MEMORANDUM OPINION AND ORDER
Pending before the court is Defendants’ Motion to Dismiss and Other
Sanctions, filed by Ethicon, Inc. and Johnson and Johnson (collectively “Ethicon”).
[ECF No. 31]. Plaintiff, by counsel, filed Plaintiff’s Memorandum in Opposition to
Defendant’s Motion to Dismiss with Prejudice on September 26, 2017. [ECF 34].
Defendants filed Defendants’ Reply in Support of Motion to Dismiss with Prejudice
on October 3, 2017. [ECF 35]. Having considered the filings before this Court, this
matter is now ripe for my review. For the reasons stated below, the motion is
GRANTED.
Ethicon’s Motion arises from this court’s Order [ECF No. 28], entered on
August 10, 2017, denying Ethicon’s first Motion to Dismiss with Prejudice 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. 28] (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 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. Moreover, Plaintiff has
not served responses to Defendants’ First Set of Interrogatories and Requests for
Production of Documents, the deadline for discovery being September 25, 2017
pursuant to PTO # 251, and failed to appear for her properly noticed deposition. See
Defs.’ Mot. To Dismiss 1- 2 [ECF 31]. 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 August 10, 2017 Order [ECF No. 28], it

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).
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is ORDERED that the defendants’ Motion to Dismiss [ECF No. 31] is GRANTED IN
PART in that Ethicon is DISMISSED with prejudice and DENIED IN PART as to
other sanctions.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and to any unrepresented party.
ENTER:

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October 12, 2017