Harrison et al v. Boston Scientific Corporation

Filing 8

ORDER denying 6 MOTION by Boston Scientific Corporation to Dismiss for Plaintiff's Failure to Timely Serve her Plaintiff Profile Form, as more fully set forth herein; the plaintiffs have 30 business days from the entry of this Order to submit to BSC a completed PPF; failure to comply with this Order will result in dismissal with prejudice upon motion by the defendant; 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. Signed by Judge Joseph R. Goodwin on 2/18/2016. (cc: counsel of record; any unrepresented party) (kp)

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:
Harrison, et al. v. Boston Scientific Corp.

Civil Action No. 2:13-cv-16485
ORDER

Pending before the court is Boston Scientific Corporation’s (“BSC”) Motion to Dismiss
[ECF No. 6]. The plaintiffs have responded to the motion [ECF No. 7], making it ripe for review.
For the reasons stated below, BSC’s Motion to Dismiss [ECF No. 6] 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 over 70,000 cases currently
pending, approximately 18,000 of which are in the BSC MDL, MDL 2326. 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”) # 16, 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 # 16, In re: Boston Scientific Corp., Pelvic Repair System Prods.
Liab.

Litig.,

No.

2:12-md-2326,

entered

Oct.

4,

2012,

available

at

http://www.wvsd.uscourts.gov/MDL/boston/orders.html). The parties

jointly drafted the

requirements for PTO # 16, and I entered it as applicable to every one of the thousands of cases in
this MDL. The instant plaintiffs, however, did not comply with PTO # 16 in that they wholly failed
to submit a completed PPF, and on this basis, BSC now moves for dismissal and reasonable
sanctions against the plaintiffs. Specifically, BSC seeks reasonable monetary sanctions, dismissal
of the plaintiffs’ case, and/or another sanction deemed appropriate by the court.
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)).
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 a way to
move thousands of cases toward resolution on the merits while at the same time respecting their

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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, administered,
and employed by the court and the parties 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 # 16, each plaintiff is required to submit a completed PPF within 60 days

of filing a Short Form Complaint. (PTO # 16 ¶ 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 allegations
of the complaint.” 460 F.3d at 1234. To this end, PTO # 16 provided that “[a]ny plaintiff who fails

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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 # 16 ¶ 1i).
Here, the plaintiffs filed their complaint on June 29, 2013, and the plaintiffs’ PPF was due
to BSC by August 28, 2013. As of the date of this Order, the plaintiffs have not submitted a PPF,
making it more than 903 days late. Accordingly, pursuant to PTO # 16, BSC seeks remedy from
the court for this discovery failure in the form of dismissal or monetary sanctions. The plaintiffs
respond that these sanctions are not appropriate because the sole reason for the discovery
deficiency is plaintiffs’ counsel’s inability to obtain a response from Ms. Harrison despite multiple
attempts. 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 plaintiffs
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. Harrison. However, counsel’s inability to contact the plaintiffs is not an
excuse and instead indicates a failing on the part of the plaintiffs, who have 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 parties to this
litigation . . . bear the responsibility to represent their individual client or clients.” (PTO # 4 ¶ C,
In re: Boston Scientific Corp., Pelvic Repair System Prods. Liab. Litig., No. 2:12-md-002326,
entered Apr. 17, 2012, available at http://www.wvsd.uscourts.gov/MDL/boston/orders.html). This
includes awareness of and good faith attempts at compliance with all PTOs and other court orders.

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PTO # 16—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 plaintiffs nevertheless failed to
comply. 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 plaintiffs. 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, BSC 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 BSC has had to divert its attention
away from timely plaintiffs and onto Ms. Harrison, the delay has unfairly impacted the progress
of the remaining plaintiffs in MDL 2326.
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 BSC’s counsel, a considerable number of plaintiffs have failed to supply
BSC with a timely PPF. In fact, of the motions filed by BSC to date, the majority of these plaintiffs,
including Ms. Harrison, have failed to supply a PPF at all. Consequently, the court expects to have
to evaluate and dispose of a significant number of 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

5

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. Accordingly, rather than imposing harsh monetary sanctions at this time, the court
opts for a lesser sanction and allows Ms. Harrison one more chance to comply with PTO # 16
subject to dismissal with prejudice, upon motion by the defendant, if she fails to do so. This course
of action is consistent with PTO # 16, which warned plaintiffs of the possibility of dismissal upon
failure to submit a timely PPF. (See PTO # 16 ¶ 1(g) (“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 over 18,000 cases.
The court cannot spare its already limited resources enforcing and monitoring sanctions that are
qualified by the individual circumstances of each case, nor would it be fair for the court to place
this responsibility on BSC. Therefore, considering the administrative and economic realities of
multidistrict litigation, I conclude that affording Ms. Harrison 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, administered, and employed by the
court and the parties to secure the just, speedy, and inexpensive determination of every action and
proceeding”).

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IV.

Conclusion
It is ORDERED that BSC’s Motion to Dismiss [ECF No. 6] is DENIED. It is further

ORDERED that the plaintiffs have 30 business days from the entry of this Order to submit to
BSC 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 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 send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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February 18, 2016