Atkins et al v. Ethicon, Inc. et al

Filing 19

ORDER (Plaintiffs' Motion Under Rule 41(a)(2) Requesting Dismissal Without Prejudice) granting the Motion filed in Mullins, et al. v. Ethicon, Inc., et al. Civil Action No. 2:12-cv-02952 by Janet Atkins, Richard Atkins Under Rule 41(a)(2) Requesting Dismissal Without Prejudice; the court ORDERS that this case is DISMISSED without prejudice. Signed by Judge Joseph R. Goodwin on 9/2/2016. (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
CONSOLIDATED LEAD CASE:

Mullins, et al. v. Ethicon, Inc., et al.

Civil Action No. 2:12-cv-02952

AND MEMBER CASE:

Janet Atkins, et al. v. Ethicon, Inc., et al.

Civil Action No. 2:13-cv-11022

ORDER
(Plaintiffs’ Motion Under Rule 41(a)(2) Requesting Dismissal Without Prejudice)
Pending before the court is the plaintiffs’ Motion Under Rule 41(a)(2)
Requesting Dismissal Without Prejudice [ECF No. 606].1 Ethicon, Inc. and Johnson
& Johnson’s (collectively “Ethicon”) filed a Response [ECF No. 724], and the plaintiffs
filed a Reply [ECF No. 820].
Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, “[e]xcept as
provided by Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only
by court order, on terms that the court considers proper. . . . Unless the order states
otherwise, a dismissal under this paragraph (2) is without prejudice.” Fed. R. Civ. P.

The plaintiffs’ Motion was filed in the consolidated lead case, Mullins, et al. v. Ethicon, Inc., et al.,
Civil Action No. 2:12-cv-02952.
1

41(a)(2). “A plaintiff's motion under Rule 41(a)(2) for dismissal without prejudice
should not be denied absent substantial prejudice to the defendant.” S.A. Andes v.

Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986). “While there is a clear preference
for granting such motions, ‘[i]n considering a motion for voluntary dismissal, the
district court must focus primarily on protecting the interests of the defendant.’”

Baker v. Purdue Pharma, L.P., 219 F.R.D. 111, 112 (S.D. W. Va. 2003) (quoting
Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1986)).
“It is well established that, for purposes of Rule 41(a)(2), prejudice to the
defendant does not result from the prospect of a second lawsuit.” Davis, 819 F.2d at
1274. “Moreover, the possibility that the plaintiff will gain a tactical advantage over
the defendant in future litigation will not serve to bar a second suit.” Id. at 1275.
Actual legal prejudice is required to deny a motion to dismiss under Rule 41(a)(2).

See Bragg v. Robertson, 54 F. Supp. 2d 653, 661 (S.D. W. Va. 1999) (Haden, C.J.). The
court has considered at least four factors relevant to the prejudice issue: (1) the
opposing party’s effort and expense in preparing for trial; (2) excessive delay or lack
of diligence on the part of the movant; (3) insufficient explanation of the need for a
dismissal; and (4) the present stage of the litigation.” Vosburgh v. Indem. Ins. Co. of

N. Am., 217 F.R.D. 384, 386 (S.D. W. Va. 2003).
The plaintiffs offer the following explanation for their Motion:
[N]o medical provider has to date recommended the removal of [Mrs.
Atkins’s] TVT device. After conducting a good faith investigation as to
Mrs. Atkins’s current medical conditions and the causes therefore,
Plaintiffs no longer wish to proceed with litigation. However, Plaintiffs
wish to preserve their rights to bring a claim if at any point in the future
Plaintiffs suffer a new cognizable injury medically and proximately

2

caused by the TVT device. Since the TVT device remains implanted in
Mrs. Atkins, [she] wishes to reserve her right to pursue compensation if
she should suffer future injuries from the product.”
Mem. Supp. Mot. 1–2 [ECF No. 607]. Further, the plaintiffs state the following:
Plaintiffs gave Defendants notice of their intent to dismiss this case on
April 17, 2016, before any depositions had taken place. As a result, no
depositions have been taken, and Defendants have incurred minimal, if
any, expenses specific to the Atkins case. Indeed, the only discovery
served in this matter has been the Plaintiff Profile Form and the
abbreviated Plaintiff Fact Sheet, which Plaintiffs provided to
Defendants.

Id. at 4.
The court FINDS that Ethicon’s expense relating to the plaintiffs’ case is
minimal and that the litigation has not progressed very far. The court further FINDS
that the plaintiffs have provided a sufficient explanation for dismissal. Ethicon’s
argument that the case should not be dismissed because it would deprive it of
potentially favorable evidence in this consolidated proceeding is without merit. The
court FINDS that dismissing this case without prejudice will not cause “substantial
prejudice” to Ethicon. See S.A. Andes, 788 F.2d at 1036.
Accordingly, the court GRANTS the plaintiffs’ Motion Under Rule 41(a)(2)
Requesting Dismissal Without Prejudice [ECF No. 606]. The court ORDERS that this
case is DISMISSED without prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: September 2, 2016

3