Spitzer-Gibson et al v. Boston Scientific Corporation

Filing 13

MEMORANDUM OPINION AND ORDER The 11 MOTION by Boston Scientific Corporation to Dismiss is GRANTED, and the plaintiffs' case is DISMISSED with prejudice. Signed by Judge Joseph R. Goodwin on 4/14/2017. (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:

BOSTON SCIENTIFIC CORP.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2326
______

THIS DOCUMENT RELATES TO:

Spitzer-Gibson, et al. v. Boston Scientific Corp.

Civil Action No. 2:13-cv-15361

MEMORANDUM OPINION AND ORDER
Pending before the court is Boston Scientific Corp.’s (“BSC”) Motion to Dismiss
for Failure to Timely Serve the Plaintiff Profile Form [ECF No. 11]. The plaintiffs
have responded to the motion [ECF No. 12], making it ripe for decision. For the
reasons stated below, the motion is GRANTED.
BSC’s Motion arises from this court’s Order [ECF No. 9], entered on February
17, 2016, denying BSC’s Motion for Sanctions, including monetary penalties,
dismissal and any other sanction deemed appropriate by the court, for failure to serve
a Plaintiff Profile Form (“PPF”) in compliance with Pretrial Order (“PTO”) # 16. In
reaching this decision, I relied on Wilson v. Volkswagen of America, Inc., 561 F.2d
494 (4th Cir. 1977), in which the Fourth Circuit identified four factors that a court
must consider when reviewing a motion to dismiss on the basis of noncompliance with
discovery. See Order at 4–7 [ECF No. 9] (applying the Wilson factors to Ms. SpitzerGibson’s case).1 Concluding that the first three factors weighed in favor of sanctions

The Wilson factors are as follows: (1) Whether the noncomplying party acted in bad faith; (2) the
amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry
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as requested by BSC, I nevertheless declined to award the requested sanctions of
either dismissal or monetary sanctions because it would offend the court’s duty under

Wilson’s fourth factor, which is to consider the effectiveness of lesser sanctions. In
recognition of this duty, I gave the plaintiffs a final chance to comply with the
deadlines set forth in PTO # 16. I afforded her 30 business days from the entry of the
Order to submit to BSC a completed PPF, with the caveat that a failure to do so may
result in dismissal of her case upon motion by BSC. Despite this warning, Ms. SpitzerGibson has again failed to comply with this court’s orders and did not provide BSC
with her PPF within the 30-day period. Consequently, BSC moved to dismiss this
case.
Because the less drastic sanction instituted against Ms. Spitzer-Gibson has
had no effect on her compliance with and response to this court’s discovery orders,
which she has continued to blatantly disregard, I find that dismissal is now
appropriate. For the reasons explained in my February 17, 2016 Order [ECF No. 9],
it is ORDERED that the defendant’s Motion to Dismiss [ECF No. 11] is GRANTED,
and the plaintiffs’ case is DISMISSED with prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.

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. Mut. Fed. Sav. & Loan

Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (citing Wilson, 561 F.2d at
503–06).
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ENTER: April 14, 2017

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