Batchelor v. Boston Scientific Corporation
Filing
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MEMORANDUM OPINION & ORDER granting in part and denying in part 10 MOTION by Boston Scientific Corporation to Dismiss; as more fully set forth herein; the plaintiff has 30 business days from the entry of this Order to pay BSC $1000 as minimal partial compensation for the reasonable expenses caused by the plaintiff's failure to comply with discovery; in the event that the plaintiff does not provide adequate or timely payment, the court will consider ordering a show-cause hearing in C harleston, West Virginia, upon motion by the defendants; that plaintiff's counsel is directed to send a copy of this Order to the plaintiff via certified mail, return receipt requested, and file a copy of the receipt. Signed by Judge Joseph R. Goodwin on 4/26/2016. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE:
BOSTON SCIENTIFIC CORP.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2326
THIS DOCUMENT RELATES TO:
Batchelor v. Boston Scientific Corp.
Civil Action No. 2:13-cv-06898
MEMORANDUM OPINION & ORDER
Pending before the court is Boston Scientific Corp.’s (“BSC”) Motion to Dismiss
[ECF No. 10]. The plaintiff responded to the motion, and also moved to serve a late
PPF on Boston Scientific Corp [ECF No. 11]. These motions are now ripe for decision.
For the reasons stated below, BSC’s Motion to Dismiss [ECF No. 10] is GRANTED in
part and DENIED in part. Plaintiff’s Motion for Leave to Serve the PPF [ECF No. 11]
is DENIED as moot.
I.
Background
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 75,000 cases currently pending, over 19,000 of which are in the BSC MDL, MDL
2326. Managing multidistrict litigation 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’ discovery responsibilities.
Pretrial Order (“PTO”) # 16, for example, ensures that BSC receives the plaintiffspecific information necessary to defend the cases against it. Under PTO # 16, 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 PTO # 16, No.
2:12-md-2326, entered Oct. 4, 2012 [ECF No. 211]. Each plaintiff must submit a PPF
within 60 days of filing a Short Form Complaint. Id. at ¶ 1(b). Failure to do so subjects
the plaintiff “to sanctions, to be determined by the court, upon motion of the
defendants.” Id. ¶ 1(i). The parties jointly drafted the requirements for PTO # 16, and
I entered it as applicable to every one of the thousands of cases in this MDL.
Here, the plaintiff filed her complaint on April 2, 2013, and her PPF was due
to BSC by June 3, 2013. According to BSC, the plaintiff did not submit a PPF during
this time period. BSC asks the court to dismiss the plaintiff’s case or, alternatively,
sanction the plaintiff a reasonable monetary penalty under the terms and conditions
that the court deems appropriate. According to the plaintiff, she attempted to submit
her PPF via e-mail to BSC’s counsel in 2013. However, neither the plaintiff nor her
counsel can verify that the PPF was actually served on or received by BSC at that
time. Indeed, the plaintiff cannot verify that the PPF was actually received by BSC
before March 24, 2016, making it possibly more than 1025 days late. The plaintiff
insists sanctions are not appropriate because the discovery deficiency has been cured
and there was no bad faith present.
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II.
Legal Standard
Federal Rule of Civil Procedure 37(b)(2) provides that a court may issue “just
orders” when a party fails to provide or permit discovery. Fed. R. Civ. P. 37(b)(2)(A).
In the MDL world, this authority has particular significance. An MDL judge bears
the “enormous” task of “mov[ing] thousands of cases toward resolution on the merits
while at the same time respecting their individuality,” and to carry out this task in a
smooth and efficient manner, the judge must establish and, more importantly,
enforce rules for discovery. In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d
1217, 1231 (9th Cir. 2006). Rule 37(b)(2) supplies the tool for this enforcement,
allowing a judge to impose sanctions when a party fails to comply with the court’s
discovery orders. See id. at 1232 (“[A] willingness to resort to sanctions, sua sponte if
necessary, may ensure compliance with the [discovery] management program.”
(internal citation omitted)); 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.”).1
III.
Discussion
The circumstances of this case lead me to impose the sanction provided in Rule
37(b)(2)(C), which requires the disobeying party to pay “the reasonable expenses,
The plaintiff’s contention that the court must apply the Wilson factors before ordering monetary
sanctions is inaccurate. The Fourth Circuit Court of Appeals has directed courts to consider the Wilson
factors in the case of “extreme sanction[s],” such as dismissal or judgment by default, where the
“district court’s desire to enforce its discovery orders is confronted head-on by the party’s rights to a
trial by jury and a fair day in court.” Mut. Fed. Sav. & Loan Ass’n v. Richards & Associates, Inc. , 872
F.2d 88, 92 (4th Cir. 1989) (citing Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 503–06 (4th Cir.
1977)). The minor sanction ultimately ordered in this case, partial compensation of the expenses
caused by the plaintiff’s discovery violation, does not raise these concerns. Therefore, I do not find it
necessary to review the Wilson factors.
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including attorney’s fees, caused by the [discovery] failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust.”
Fed. R. Civ. P. 37(b)(2)(C). Plaintiff’s counsel has not provided substantial
justification for their failure to timely submit to discovery. Furthermore, there are no
circumstances that make this sanction unjust. Although the discovery violation has
since been cured, it nevertheless resulted in litigation expenses for BSC. Applying
Rule 37(b)(2)(C) ensures that the disobeying party, rather than the innocent party,
bears those costs. Accordingly, BSC’s Motion to Dismiss is DENIED in part in regards
to dismissing the plaintiff’s claim and GRANTED in part to the extent that it seeks
the payment of reasonable expenses.
To bring this Motion to Dismiss, BSC expended time and money identifying
Ms. Batchelor as one of the non-compliant plaintiffs; assessing the effect of her
discovery violations; drafting a motion to dismiss or for sanctions; and serving the
motion. Based on my understanding of the economic and administrative realities of
multidistrict litigation, I conclude that a more representative, though still minimal,
valuation of BSC’s expenses, and the proper sanction in this case, is in the amount of
$1000.
IV.
Conclusion
It is therefore ORDERED that the plaintiff has 30 business days from the entry
of this Order to pay BSC $1000 as minimal partial compensation for the reasonable
expenses caused by the plaintiff’s failure to comply with discovery.2 In the event that
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The court directs BSC to communicate with plaintiffs’ leadership regarding payment instructions.
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the plaintiff does not provide adequate or timely payment, the court will consider
ordering a show-cause hearing in Charleston, West Virginia, upon motion by the
defendants. It is further ORDERED that BSC’s Motion to Dismiss [ECF No. 10] is
GRANTED in part and DENIED in part, and Plaintiff’s Motion for Leave to Serve
the PPF [ECF No. 11] is DENIED as moot. Finally, it is ORDERED that plaintiff’s
counsel send a copy of this Order to the plaintiff via certified mail, return receipt
requested, and file a copy of the receipt.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: April 26, 2016
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