Lopez v. Mentor Worldwide LLC et al
Filing
19
MEMORANDUM OPINION & ORDER denying without prejudice 16 MOTION by Mentor Worldwide LLC to Dismiss for Failure to Prosecute; the plaintiff must serve her expert disclosures, respond to Mentor's requests for written discovery, and make herself a vailable for a deposition by 1/22/2018; failure to comply with this Order may result in dismissal with prejudice upon motion by the defendants; 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 12/22/2017. (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:
COLOPLAST CORP.
PELVIC SUPPORT SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2387
THIS DOCUMENT RELATES TO:
Cordelia P. Lopez v. Mentor Worldwide LLC, et al.
Civil Action No. 2:13-cv-09909
MEMORANDUM OPINION & ORDER
Pending before the court is Defendant’s Motion to Dismiss for Failure to
Prosecute [ECF No. 16] filed by Mentor Worldwide LLC (“Mentor”). The plaintiff
has not responded, and the deadline for responding has expired. Thus, this matter is
ripe for my review. For the reasons stated below, Mentor’s Motion is DENIED.
I.
Background
The 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
nearly 25,000 cases currently pending, approximately 150 of which are in the
Coloplast MDL, MDL 2387.
In an effort to efficiently and effectively manage this MDL, the court decided
to conduct pretrial discovery and motions practice on an individualized basis so that
once a case is trial-ready (that is, after the court has ruled on all summary judgment
motions, among other things), it can then be promptly transferred or remanded to the
appropriate district for trial. To this end, the court placed this and other cases in
Coloplast Wave 3. Pretrial Order (“PTO”) # 123, at 10 [ECF No. 7].
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. For
example, PTO # 126 required all plaintiffs in Wave 3 cases to submit their expert
disclosures by August 4, 2017. PTO # 126, at 1 [ECF No. 8]. PTO # 132 required
plaintiffs to submit specific causation expert disclosures by September 5, 2017, and
set the close-of-discovery deadline for November 4, 2017. The plaintiff failed to comply
with each of these deadlines. On this basis, Mentor now seeks dismissal with
prejudice.
II.
Legal Standard
Federal Rule of Civil Procedure 37(b)(2) allows a court to sanction a party for
failing to comply with discovery orders. See Fed. R. Civ. P. 37(b)(2) (stating that a
court “may issue further just orders” when a party “fails to obey an order to provide
or permit discovery”). Before levying a harsh sanction under Rule 37, such as
dismissal or default, a court must first consider the following four factors identified
by the Fourth Circuit Court of Appeals:
(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.
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Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., 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)).
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, containing thousands of individual cases in
the aggregate, 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, administered,
and employed by the court and the parties to secure the just, speedy, and inexpensive
determination of every action and proceeding”).
In turn, counsel must collaborate with the court “in fashioning workable
programmatic procedures” and cooperate with these procedures thereafter. In re
Phenylpropanolamine, 460 F.3d 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
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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.”).
III.
Discussion
Pursuant to PTO # 126, all plaintiffs in Wave 3 cases were required to submit
their expert disclosures by August 4, 2017. PTO # 126, at 1. PTO # 132 required
plaintiffs to submit specific causation expert disclosures by September 5, 2017, and
set the close-of-discovery deadline for November 4, 2017. According to Mentor, the
plaintiff failed to submit her expert disclosures and failed to respond to requests for
written discovery. Additionally, “Mentor attempted to contact Plaintiff at least seven
times to set a date for Plaintiff’s deposition, but received no proposed dates from
Plaintiff’s counsel in response to any of these inquiries.” Mem. Supp. Def.’s Mot. to
Dismiss 1 [ECF No. 17]. As of the date of filing its Motion, plaintiff’s counsel still had
not responded to Mentor’s requests for proposed dates. Plaintiff’s counsel has not
responded to the Motion to Dismiss.
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.
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The first factor, bad faith, is difficult to ascertain, given that the plaintiff has
not responded. This indicates a failing on the part of the plaintiff, who has an
obligation to provide counsel with any information needed to prosecute her case. 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.”). Furthermore, as set forth in PTO # 2, “[a]ll attorneys
representing parties to this litigation . . . bear the responsibility to represent their
individual client or clients.” PTO # 2, at ¶ E [ECF No. 10], In re Coloplast
Corp., Pelvic Support Sys. Prods. Liab. Litig., No. 2:12-md-02387. This includes
awareness of and good faith attempts at compliance with all PTOs and other court
orders. The plaintiff nevertheless failed to comply with PTOs 126 and 132. 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 [plaintiffs] did not act in good faith.”).
The second factor—prejudice caused by noncompliance—also leans toward the
order of sanctions. The purpose of depositions and orderly pretrial discovery in
general is to permit the parties and the court to resolve matters in a just, speedy, and
inexpensive manner. By depriving Mentor of the plaintiff’s deposition testimony, the
plaintiff is depriving Mentor of the information it needs to mount its defense.
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Furthermore, because Mentor has had to divert attention away from responsive
plaintiffs and onto this case, the delay has unfairly impacted the progress of the
remaining plaintiffs in MDL 2387.
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. 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 Mentor. Rather than
imposing harsh sanctions at this time, the court opts for a lesser sanction and allows
the plaintiff one more chance to comply, subject to dismissal upon motion by the
defendant, if she fails to do so.
Alternative lesser sanctions, such as the ones proposed in Rule 37(b)(2)(i)–(iv),
are simply impracticable, and therefore ineffective, in the context of an MDL
containing approximately 150 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
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responsibility on defendants. 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 if she fails 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 Federal Rules of Civil Procedure “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”).
IV.
Conclusion
It is ORDERED that Defendant’s Motion to Dismiss for Failure to Prosecute
[ECF No. 16] is DENIED without prejudice. It is further ORDERED that the plaintiff
must serve her expert disclosures, respond to Mentor’s requests for written discovery,
and make herself available for a deposition on or before January 22, 2018. Failure to
comply with this Order may result in dismissal with prejudice upon motion by the
defendants. 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:
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December 22, 2017
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