Balkema v. Ethicon, Inc. et al
ORDER (Motion to Dismiss) The defendants' 8 amended motion to dismiss is GRANTED in part to the extent defendants seek dismissal, but DENIED insofar as they seek dismissal with prejudice. Signed by Judge Joseph R. Goodwin on 12/20/2013. (cc: attys; any unrepresented party) (REF: MDL 2327) (ras)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
THIS DOCUMENT RELATES TO:
Balkema v. Ethicon, Inc. et al.
(Motion to Dismiss)
Pending before the court is defendants Johnson & Johnson, Inc. and Ethicon, Inc.’s
motion to dismiss. The motion is ripe for review. For the reasons stated below, the motion is
GRANTED in part to the extent that defendants seek dismissal, but DENIED insofar as they
seek dismissal with prejudice.
The defendants move to dismiss this case because the plaintiff failed to timely file a
Plaintiff Profile Form (“PPF”). This case is one of over 40,000 cases that have been assigned to
me by the Judicial Panel on Multidistrict Litigation. These cases arise out of 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. For example, the parties agreed,
and I entered a Pretrial Order (“PTO”) applicable to every case in this MDL, stating that each
plaintiff would submit a 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
http://www.wvsd.uscourts.gov/MDL/ethicon/pdfs/PTO_17.pdf). Nevertheless, the plaintiff in
this case failed to submit a completed PPF within the time allotted by Pretrial Order #17.
Pursuant to PTO #17, each plaintiff was required to submit a completed PPF. Plaintiffs
whose cases were pending at the time PTO #17 was entered were to submit their PPF within 60
days of the date of the Order, while plaintiffs who filed their cases after the Order was entered
were to submit their PPF within 60 days of filing a Short Form Complaint. (PTO #17, at 1). The
Order provided “[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[.]” (Id. at 4). 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.). In this case, the plaintiff filed the complaint on June 6, 2013, but did not file
the PPF until November 22, 2013, making it 109 days late. At no point did the plaintiff file a
motion requesting an extension of this date.
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
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 apply 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 Prod. 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.). As in In re
Phenylpropanolamine Prod. Liab. Litig., the purpose of the PPFs “was 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.
In response to the defendants’ motion to dismiss, the plaintiff offers only non-specific
excuses for the failure to timely submit a PPF, asserting that it was a mistake. This same nonspecific excuse is asserted by counsel in numerous other cases. However, plaintiff’s counsel
either was or should have been aware of the requirements of PTO #17. It is clearly stated in PTO
#4, paragraph C that “[a]ll attorneys representing parties to this litigation, regardless of their role
in the management structure of the litigation and regardless of this court’s designation of Lead
and Liaison Counsel, a Plaintiffs’ Executive Committee and a Plaintiffs’ Steering Committee,
continue to bear the responsibility to represent their individual client or clients.” (PTO #4, In re:
Ethicon, Inc. Pelvic Repair System Products Liability Litigation, No. 2:12-md-002327 [Docket
120], at 10, available at http://www.wvsd.uscourts.gov/MDL/ethicon/pdfs/PTO_4.pdf).
Additionally, PTO #17 was jointly drafted by plaintiffs’ and defense counsel. The Order
was clear that failure to timely submit a PPF was grounds for a motion to dismiss, and that the
court would determine the appropriate sanction for failure to comply. (See PTO #17, at 4). As the
Supreme Court has observed, “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 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 observed,
[A]dministering 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 Products Liab. Litig., 496 F.3d 863, 867 (8th Cir.
2007) (quoting in part In re Phenylpropanolamine Prod. Liab. Litig., 460 F.3d at 1229, 1232
(internal references omitted).
I therefore FIND that the appropriate sanction for failure to timely file a PPF is dismissal
It is ORDERED that the defendants’ motion to dismiss [Docket 8] is GRANTED in
part to the extent defendants seek dismissal, but DENIED insofar as they seek dismissal with
prejudice. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and
any unrepresented part.
December 20, 2013
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