Thomas et al v. Ethicon, Inc. et al
Filing
8
ORDER denying 5 MOTION by Ethicon, Inc., Johnson & Johnson for Sanctions for Failure to Timely Serve Plaintiff Profile Form. It is further ORDERED that the plaintiff has 30 business days from the entry of this Order to submit to Ethicon a completed PPF. Failure to comply with this Order will result in dismissal with prejudice upon motion by the defendant. 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. Signed by Judge Joseph R. Goodwin on 6/11/2015. (cc: attys; any unrepresented party) (skh)
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:
Deborah Thomas & John Thomas v. Ethicon, Inc., et al.
Civil Action No. 2:13-cv-16361
ORDER
Pending before the court is Ethicon, Inc., Ethicon, LLC, and Johnson & Johnson’s
(collectively “Ethicon”) Motion for Sanctions [Docket 5]. For the reasons stated below,
Ethicon’s Motion for Sanctions [Docket 5] is DENIED.
I.
Background
This 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 70,000 cases
currently pending, approximately 25,000 of which are in the Ethicon, Inc. MDL, MDL 2327.
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. Pretrial Order (“PTO”) # 17, for example,
provides that each plaintiff in this MDL must submit a Plaintiff Profile Form (“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 PTO # 17, In re: Ethicon, Inc., Pelvic
Repair System Prods. Liab. Litig., No. 2:12-md-2327, entered Oct. 4, 2012, available at
http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html). The parties jointly drafted the
requirements for PTO # 17, and I entered it as applicable to every one of the thousands of cases
in this MDL. The instant plaintiff, however, did not comply with PTO # 17 in that she wholly
failed to submit a completed PPF, and on this basis, Ethicon now moves for sanctions against the
plaintiff. Specifically, Ethicon asks for a monetary sanction of $100 per day since August 27,
2013, the deadline for service of the plaintiff’s PPF. As of today, that total is $65,400.
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.
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)).1
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, each containing thousands of individual cases, 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
1
Although Ethicon does not seek default or dismissal in this case, I nevertheless find the Wilson factors instructive
and applicable to the instant motion, given the harsh monetary sanction at issue and the possibility, as explained
below, that if the plaintiff does not comply with this Order, Ethicon may move for dismissal with prejudice.
2
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 and administered 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 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 # 17, each plaintiff is required to submit a completed PPF within 60
days of filing a Short Form Complaint. (PTO # 17 ¶ 1b). The purpose of the PPF, as was the case
in In re Phenylpropanolamine, is “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
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allegations of the complaint.” 460 F.3d at 1234. To this end, PTO # 17 provided 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.”
(PTO # 17 ¶ 1i).
Here, the plaintiff filed her complaint on June 28, 2013, and her PPF was due to Ethicon
by August 27, 2013. As of the date of this Order, the plaintiff has not submitted a PPF, making it
654 days late. Accordingly, pursuant to PTO # 17, Ethicon seeks remedy from the court for this
discovery failure in the form of monetary sanctions. The plaintiff responds that these sanctions
are not appropriate because the sole reason for the discovery deficiency is plaintiff’s counsel’s
inability to obtain a response from Ms. Thomas despite multiple attempts. The plaintiff proposes
a lesser sanction, such as dismissal without prejudice.2 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.
The first factor, bad faith, is difficult to ascertain, given that plaintiff’s counsel has not
had recent contact with Ms. Thomas. However, counsel’s inability to contact the plaintiff is not
an excuse and instead indicates a failing on the part of the plaintiff, who has an obligation to
provide counsel with any information needed to prosecute her case, including up-to-date contact
information. 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 # 4, “[a]ll attorneys representing
2
The plaintiff also reiterates the arguments in lead counsel’s omnibus motion seeking clarification and amendment
of PTO # 17. (See Pls.’ Mot. to Clarify & Amend PTO # 17 & Pl. Leadership Counsel’s Position on Defs.’ Mots. for
Sanctions, No. 2:12-md-02327 [Docket 1558], at 15). By Order entered on June 2, 2015, this motion was denied.
(See PTO # 180, No. 2:12-md-02327 [Docket 1582]).
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parties to this litigation . . . bear the responsibility to represent their individual client or clients.”
(PTO # 4 ¶ C, In re: Ethicon Pelvic Repair System Prods. Liab. Litig., No. 2:12-md-002327,
entered Apr. 17, 2012, available at http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html).
This includes awareness of and good faith attempts at compliance with all PTOs and other court
orders. PTO # 17—which was jointly drafted by the leadership counsel of both parties—
expressly states that failure to timely submit a PPF could result in sanctions. The plaintiff
nevertheless failed to comply for more than a year. 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. Without a PPF, Ethicon 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.”
In re Phenylpropanolamine, 460 F.3d at 1234. Furthermore, because Ethicon has had to divert its
attention away from timely plaintiffs and onto Ms. Thomas, the delay has unfairly impacted the
progress of the remaining plaintiffs in MDL 2327.
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. From the representations of Ethicon’s counsel, more than 800 plaintiffs have failed to
supply Ethicon with a timely PPF. In fact, of the motions filed by Ethicon to date, the majority of
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these plaintiffs, including Ms. Thomas, have failed to supply a PPF at all. Consequently, the
court expects to have to evaluate and dispose of 800 motions similar to the one at bar, thereby
directing its time and resources to noncompliant plaintiffs at the expense of other plaintiffs in
this MDL. 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. But imposing Ethicon’s requested sanction of $100 for each day the plaintiff’s PPF
was late—a total of $65,400—would offend the court’s duty under Wilson’s fourth factor, which
is to consider the effectiveness of lesser sanctions.3 Accordingly, rather than imposing harsh
monetary sanctions at this time, the court opts for a lesser sanction and allows Ms. Thomas one
more chance to comply with PTO # 17 subject to dismissal with prejudice, upon motion by the
defendant, if she fails to do so. This course of action is consistent with PTO # 17, which warned
plaintiffs of the possibility of dismissal upon failure to submit a timely PPF. (See PTO # 17 ¶ 1g
(“If a plaintiff does not submit a PPF within the time specified in this Order, defendants may
move immediately to dismiss that plaintiff’s case without first resorting to [] deficiency cure
procedures.”)).
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 nearly 25,000
cases. The court cannot spare its already limited resources enforcing and monitoring sanctions
3
Not to mention, the Fourth Circuit has prohibited monetary fines that go beyond that which is compensatory absent
notice and an opportunity to be heard. See Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 42 (4th Cir. 1995)
(holding that a punitive fine imposed by a court under Rule 37 is “effectively a criminal contempt sanction,
requiring notice and the opportunity to be heard” (quoting Buffington v. Baltimore Cnty., 913 F.2d 113, 133–35 (4th
Cir. 1990))).
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that are qualified by the individual circumstances of each case, nor would it be fair for the court
to place this responsibility on Ethicon. Therefore, considering the administrative and economic
realities of multidistrict litigation, I conclude that affording Ms. Thomas a final chance to comply
with discovery, subject to dismissal with prejudice 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 and administered to
secure the just, speedy, and inexpensive determination of every action and proceeding”).
IV.
Conclusion
It is ORDERED that Ethicon’s Motion for Sanctions [Docket 5] is DENIED. It is further
ORDERED that the plaintiff has 30 business days from the entry of this Order to submit to
Ethicon a completed PPF. Failure to comply with this Order will result in dismissal with
prejudice upon motion by the defendant. 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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June 11, 2015
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