McCormack et al v. Ethicon, Inc. et al
MEMORANDUM OPINION AND ORDER The 31 RENEWED MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss With Prejudice is GRANTED and Ethicon is DISMISSED with prejudice. 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
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2327
THIS DOCUMENT RELATES TO:
Lourdes McCormack, et al. v. Ethicon, Inc., et al.
Civil Action No. 2:13-cv-2069
MEMORANDUM OPINION AND ORDER
Pending before the court are defendants Ethicon, Inc. and Johnson and
Johnson’s (collectively “Ethicon”) Renewed Motion to Dismiss with Prejudice. [ECF
No. 31]. The plaintiffs filed their Memorandum in Opposition to Defendants’ Motion
to Dismiss with Prejudice on October 25, 2017. [ECF No. 34]. Defendants filed their
Reply in Support of its Renewed Motion to Dismiss with Prejudice on October 31,
2017. [ECF No. 35] Thus, this matter is ripe for my review. For the reasons stated
below, the motion is GRANTED.
Ethicon’s Motion arises from this court’s Order [ECF No. 29], entered on
September 7, 2017, denying Ethicon’s first Motion to Dismiss 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 4–7 [ECF No. 29] (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 plaintiffs a final chance to comply with the deadlines set forth
in PTO # 251. I afforded them 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 their case upon motion by the Ethicon defendants. 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 plaintiffs has had no
effect on their compliance with and response to this court’s discovery orders, which
they have continued to blatantly disregard, I find that dismissing Ethicon is now
appropriate. For the reasons explained in my September 7, 2017 Order [ECF No. 29],
it is ORDERED that the defendants’ Renewed Motion to Dismiss [ECF No. 31] is
GRANTED, and Ethicon is DISMISSED with prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and to any unrepresented party.
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).
November 6, 2017
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