Richardson et al v. Ethicon, Inc. et al

Filing 16

MEMORANDUM OPINION AND ORDER The 15 MEMORANDUM OPINION AND ORDER dated 6/6/2016 is VACATED; the 11 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss With Prejudice for Failure to Serve Plaintiff Profile Form is DENIED, as more fully set forth herein; the plaintiffs have 30 business days from the entry of this Order to provide Ethicon with the necessary signed authorization forms and to pay Ethicon $2000 as minimal partial compensation for the reasonable expenses caused by the plaint iffs' failure to comply with discovery; in the event that the plaintiffs do not provide adequate or timely payment and signed authorization forms, the court will consider ordering a show-cause hearing in Charleston, West Virginia, upon motion by the defendants; plaintiffs' counsel is directed to send a copy of this Order to the plaintiffs via certified mail, return receipt requested, and file a copy of the receipt; and the Clerk is directed to reinstate this case to the active docket, remove the Closed flag. Signed by Judge Joseph R. Goodwin on 6/23/2016. (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:

Richardson, et al. v. Ethicon, Inc., et al.

Civil Action No. 2:13-cv-15913

MEMORANDUM OPINION AND ORDER
It is ORDERED that the court’s June 6, 2016 order [ECF No. 15] is VACATED.
Pending before the court is a Motion to Dismiss with Prejudice filed by Ethicon, Inc.,
and Johnson & Johnson (collectively “Ethicon”). [ECF No. 11]. Plaintiffs have
responded, Ethicon has replied, and I have considered the parties’ filings. For the
reasons stated below, Ethicon’s Motion to Dismiss is DENIED.
I.

Background
Ethicon’s Motion arises from this court’s Order [ECF No. 10], entered on

August 14, 2015, denying Ethicon’s Motion for Sanctions, including monetary
penalties, dismissal and any other sanction deemed appropriate by the court, for
failure to file a Plaintiff Profile Form (“PPF”) in compliance with Pretrial Order No.
17. 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 [ECF No. 10], at 4–7 (applying the Wilson

factors to the plaintiffs’ case).1 Concluding that the first three factors weighed in favor
of sanctions as requested by Ethicon, I nevertheless declined to award the requested
sanction 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 discovery.” (Id. at 6). I afforded the
plaintiffs 30 business days from the entry of the Order to submit to Ethicon a
completed PPF, with the caveat that a failure to do so “will result in dismissal with
prejudice upon motion by the defendant.” (Id. at 7).

Despite this warning, the

plaintiffs did not provide Ethicon with their PPF within the 30-day period.
Consequently, Ethicon moved to dismiss the case with prejudice.
After Ethicon filed this motion to dismiss and the time for responding had
passed, the plaintiffs served Ethicon with a PPF and filed their response with the
court. The plaintiffs, however, failed to include necessary signed authorizations that
accompany a completed PPF.
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).

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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
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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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.”).
III.

Discussion

The first three previously mentioned Wilson factors demonstrate that this
court is justified in sanctioning the plaintiffs. The fourth Wilson factor, the
effectiveness of lesser sanctions, however, assists the plaintiffs. The plaintiffs and
their attorney at least attempted to comply following the court’s initial order that
granted them an additional 30-days to serve the PPF. As the plaintiffs have now
largely cured the discovery violation, the court finds that lesser sanctions, other than
the requested dismissal with prejudice, would be most effective.
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,

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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). The plaintiffs do not provide any justification for their
failure to timely submit to discovery over such a long period of time. 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
Ethicon. Applying Rule 37(b)(2)(C) ensures that the disobeying party, rather than the
innocent party, bears those costs.
Considering the economic and administrative realities of multidistrict
litigation, where the cost of preparing and serving even the most elementary of
motions can quickly and easily add up, I find that a minimal representative valuation
of Ethicon’s expenses is $2000. This number accounts for the time and money Ethicon
spent identifying the plaintiffs as one of the non-compliant plaintiffs; assessing the
effect of the plaintiffs’ discovery violations; drafting multiple motions for sanctions;
serving the motions; and replying to the plaintiffs’ briefs in opposition. This dollar
amount further reflects that Ethicon has been forced to expend additional time and
resources because the plaintiffs did not sign the required verifications when they
served the PPF. All knowledgeable MDL counsel would consider these efforts, which
could have been avoided had the plaintiffs followed the court’s order, to be worth
$2000 at the least.

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I.

Conclusion
It is therefore ORDERED that the plaintiffs have 30 business days from the

entry of this Order to provide Ethicon with the necessary signed authorization forms
and to pay Ethicon $2000 as minimal partial compensation for the reasonable
expenses caused by the plaintiffs’ failure to comply with discovery.2 In the event that
the plaintiffs do not provide adequate or timely payment and signed authorization
forms, the court will consider ordering a show-cause hearing in Charleston, West
Virginia, upon motion by the defendants. Finally, it is ORDERED that plaintiffs’
counsel send a copy of this Order to the plaintiffs via certified mail, return receipt
requested, and file a copy of the receipt.
The court DIRECTS the clerk to reinstate this case to the active docket, remove
the Closed flag, and send a copy of this Order to counsel of record and any
unrepresented party.

ENTER: June 23, 2016

2

The court directs Ethicon to communicate with plaintiffs’ leadership regarding payment instructions.

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