Lutton v. Ethicon, Inc. et al

Filing 11

MEMORANDUM OPINION & ORDER It is ORDERED that the defendant's 8 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss 1 Short Form Complaint is GRANTED in part to the extent defendants seek dismissal but DENIED insofar as they seek dismissa l with prejudice. This case is thereby DISMISSED without prejudice. Consequently, the 6 MOTION by Scott D. Levensten and the Levensten Law Firm, P.C. to Withdraw as Counsel of Record for Donna Lutton is DENIED as moot. Signed by Judge Joseph R. Goodwin on 3/9/2015. (cc: counsel of record; any unrepresented party) (ts)

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:
Donna Lutton v. Ethicon, Inc. and Johnson & Johnson

Civil Action No. 2:13-cv-05578

MEMORANDUM OPINION & ORDER
Pending before the court is defendant Ethicon, Inc. and Johnson & Johnson’s
(collectively, “the defendants”) Motion to Dismiss [Docket 8], filed on January 29, 2015. Also
pending before the court is plaintiff’s Motion to Withdraw as Counsel of Record for Claimant
Donna Lutton (“Motion to Withdraw”) [Docket 6], filed by Scott D. Levensten of the Levensten
Law Firm, P.C., on January 16, 2015.
For the reasons stated below, the Motion to Dismiss is GRANTED in part to the extent
that defendant seeks dismissal but DENIED insofar as defendant seeks dismissal with prejudice.
The court ORDERS that this case be DISMISSED without prejudice. Consequently, the
Motion to Withdraw is DENIED as moot.
I.

Background

This case is one of over 70,000 cases that have been assigned to me by the Judicial Panel
on Multidistrict Litigation regarding alleged defects in transvaginal surgical mesh used to treat
stress urinary incontinence and pelvic organ prolapse. 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 # 17, for example, provides that each plaintiff in this MDL must
submit a Plaintiff Profile Form (“PPF”) to act as interrogatory answers under Federal Rule of
Civil Procedure 33 and responses to requests for production under Federal Rule of Civil
Procedure 34. (See Pretrial Order # 17 (“PTO # 17” or the “Order”), In re: Ethicon, Inc. Pelvic
Repair System Prods. Liab. Litig., No. 2:12-md-002327, entered Oct. 4, 2012, available at
http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html). The parties jointly drafted PTO # 17,
and I entered it as applicable to every one of the thousands of cases in this MDL. The plaintiff in
this case, however, did not comply with PTO # 17 in that she failed to submit a completed PPF
within the time allotted, and on this basis, the defendant now moves to dismiss the plaintiff’s
case with prejudice.
II.

Legal Standard

Federal Rule of Civil Procedure 16 provides that “[o]n motion or on its own, the court
may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or
its attorney . . . fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C).
Rule 37 provides that where a party “fails to obey an order to provide or permit
discovery, . . . the court where the action is pending may issue further just orders[,]” including
orders dismissing the action. Fed. R. Civ. P. 37(b)(2)(A)(v); see also Mut. Fed. Sav. & Loan
Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (“Rule 37(d) of the Federal
Rules of Civil Procedure gives the district court wide discretion to impose sanctions for a party’s
failure to comply with its discovery orders.”).
Case management is particularly important in MDLs. Pretrial orders such as PTO # 17
“provide[] some necessary order and clarity to the pre-trial process without burdening plaintiff
unduly.” Rabb v. Amatex Corp., 769 F.2d 996, 999 (4th Cir. 1985) (upholding a district court’s

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dismissal of an asbestos case for failure to comply with a pretrial discovery order). In an MDL
containing thousands of individual cases, I must strictly enforce rules to ensure that all parties
comply with deadlines and that the litigation flows smoothly and efficiently. See Fed. R. Civ. P.
1 (“[The Federal Rules of Civil Procedure] should be construed and administered to secure the
just, speedy, and inexpensive determination of every action and proceeding.”); see also In re
Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1229, 1232 (9th Cir. 2006) (“Case
management orders are the engine that drives disposition on the merits [in MDLs].”).
III.

Analysis

Pursuant to PTO # 17, each plaintiff is required to submit a completed PPF within 60
days of filing a Short Form Complaint. (PTO # 17, ¶ 1). The purpose of the PPF, as was the case
in In re Phenylpropanolamine, is “to give each defendant the specific information necessary to
defend the case against it . . . [and] 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. To this end, PTO # 17 provided that “[i]f a
plaintiff does not submit a PPF within the time specified in this Order, defendants may move
immediately to dismiss that plaintiff’s case without first resorting to these deficiency cure
procedures.” (Id. ¶ 1g). Further, it stated that “[a]ny plaintiff who fails to comply with the PPF
obligations under this Order may, for good cause shown, be subject to sanctions, to be
determined by the court, upon motion of the defendants.” (Id. ¶ 1i).
The plaintiff filed her complaint on March 30, 2013, and so her PPF was due to the
defendant by May 19, 2013. After negotiations and several extensions, the parties agreed on a
deadline of January 15, 2015, for the submission of the plaintiff’s PPF. (See Pl.’s Exs. A–C
[Docket 10-1] (providing the email correspondence regarding PPF deadlines)). No PPF has been

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provided, and the defendants moved to dismiss the plaintiff’s claims pursuant to PTO # 17. In
response to the Motion to Dismiss, plaintiff’s counsel admits that he does not have a completed
PPF, and furthermore, he has been unable to locate and communicate with his client despite
repeated attempts. This, however, does not justify the plaintiff’s failure to comply with
discovery.
The plaintiff is responsible for providing her 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.”). In turn, as set forth in
PTO # 4, “[a]ll attorneys representing parties to this litigation . . . bear the responsibility to
represent their individual client or clients.” (PTO # 4 In re: Ethicon, Inc. Pelvic Repair System
Prods. Liab. Litig., No. 2:12-md-002327, ¶ C, entered Apr. 17, 2012, available at
http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html). Together, the plaintiff and her counsel
have the obligation “to move [the plaintiff’s] case to trial.” West v. City of N.Y., 130 F.R.D. 522,
524 (S.D.N.Y. 1990). In doing so, they must be aware of the requirements of this court’s pretrial
orders, as well as the possible sanctions for noncompliance. See id. at 634 (stating that each party
“is considered to have notice of all facts, notice of which can be charged upon the attorney”
(internal quotations omitted)). PTO # 17—which was jointly drafted by both parties’ counsel—
expressly states that the failure to timely submit a PPF could result in sanctions, including
dismissal, as determined by the court upon motion by the defendants. (See PTO # 17, ¶ 1g).
The Supreme Court has observed that “the most severe in the spectrum of sanctions
provided by statute or rule must be available to the district court in appropriate cases, not merely
to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those

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who might be tempted to such conduct in the absence of such a deterrent.” Nat’l Hockey League
v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976). This is particularly true in a large MDL
such as this one. As other courts have explained,
administering cases in multidistrict litigation is different from administering cases
on a routine docket . . . . Congress established MDL protocols to encourage
efficiency. In order to do so, MDL courts must be able to establish schedules with
firm cutoff dates if the coordinated cases are to move in a diligent fashion toward
resolution by motion, settlement, or trial. MDL courts must be given greater
discretion to organize, coordinate and adjudicate its proceedings, including the
dismissal of cases for failure to comply with its orders.
In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867 (8th Cir.
2007) (quoting in part In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d at 1229, 1232
(internal citations omitted)).
In exercise of this discretion, I FIND that the appropriate sanction for the plaintiff’s
failure to timely file a PPF is dismissal without prejudice.
IV.

Conclusion

It is ORDERED that the defendant’s Motion to Dismiss [Docket 8] is GRANTED in
part to the extent defendants seek dismissal but DENIED insofar as they seek dismissal with
prejudice. This case is thereby DISMISSED without prejudice. Consequently, the Motion to
Withdraw [Docket 6] is DENIED as moot. The court DIRECTS the Clerk to send a copy of this
Order to counsel of record and any unrepresented party.

ENTER:

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March 9, 2015