Gaither v. C. R. Bard, Inc. et al

Filing 26

ORDER Cook's motion to show cause is GRANTED and Cook's motion to dismiss is TAKEN UNDER ADVISEMENT; it is ORDERED that, within 30 days, the plaintiff pay Cook a $500.00 monetary sanction and show cause why her case should not be dismi ssed with prejudice; in the event the plaintiff does not pay Cook $500.00 and show cause within 30 days, the plaintiff's claims against Cook shall be dismissed with prejudice without further notice to the plaintiff. Signed by Judge Joseph R. Goodwin on 7/21/2017. (cc: counsel of record; plaintiff, via certified mail, return receipt requested) (hkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE:

COOK INCORPORATED,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2440

THIS DOCUMENT RELATES TO:
Mitzi H. Gaither v. Cook Inc., et al.

Civil Action No. 2:13-cv-19227
ORDER

On July 18, 2017, the court conducted a mandatory settlement conference as to the
plaintiff’s claims against defendants Cook Incorporated, Cook Biotech, Inc., and Cook Medical,
LLC (formerly known as Cook Medical, Inc.) (“Cook”) only,1 which the plaintiff was ordered to
attend. When the plaintiff, who is pro se, did not appear in person at the settlement conference,
counsel for Cook moved to show cause and, if the plaintiff does not comply, dismiss the plaintiff’s
case with prejudice. For the reasons stated below, Cook’s motion to show cause is GRANTED
and Cook’s motion to dismiss is TAKEN UNDER ADVISEMENT.
I.

Background
This case resides in the Cook MDL, 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 more than 50,000
cases currently pending, approximately 500 of which are in the Cook MDL. Managing this many
cases in multidistrict litigation requires the court to streamline certain procedures, such as ordering
mandatory settlement conferences, to improve efficiency for the parties and the court.

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Plaintiff also filed claims against C. R. Bard, Inc. and American Medical Systems, Inc. Those claims remain
pending and were not subject to the settlement conference order.

On June 12, 2017, I entered Pretrial Order (“PTO”) # 80 directing all plaintiffs in the Cook
MDL alleging claim(s) against Cook to engage in good faith settlement negotiations with Cook on
or before June 30, 2017. MDL 2440, PTO # 80 ¶ 1 [ECF No. 501]. PTO # 80 also notified the
parties that the court would conduct settlement conferences on July 18, 2017 for all unresolved
cases. Id. at ¶¶ 2–3. On July 13, 2017, I entered PTO # 82 notifying the plaintiff again about the
mandatory settlement conference on July 18, 2017 and her obligation to attend. MDL 2440, PTO
# 82 [ECF No. 507]. I entered PTO # 82 in the main MDL and in the plaintiff’s individual case.
PTO # 82 explicitly states, “individual plaintiffs whose cases are scheduled for a settlement
conference shall appear in person for the settlement conference” and that “any plaintiff who fails
to comply with this PTO may be subject to a substantial sanction, including dismissal with
prejudice.” Id. at 1–2.
Ms. Gaither did not engage in good faith settlement discussions with Cook, nor did she
appear in person for the mandatory settlement conference with them on July 18, 2017. During this
proceeding, the court called the plaintiff’s name in the courtroom and had a Court Security Officer
call the plaintiff’s name three times in the lobby outside the courtroom. The plaintiff was not
present. Cook moved to show cause and, if the plaintiff does not comply, Cook moved for
sanctions against Ms. Gaither, specifically requesting dismissal of the plaintiff’s case with
prejudice.
II.

Legal Standard
Federal Rule of Civil Procedure Rule 16(a)(5) permits the court to issue orders regarding

pretrial conferences for the purpose of facilitating settlement. Fed. R. Civ. P. 16(a)(5). Rule 16(f)
provides a court may issue any just order, including those authorized by Rule 37(b)(2)(A)(ii)–(vii)
if a party fails to appear at a pretrial conference or fails to obey a scheduling or other pretrial order.

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Id. 16(a)(5), (f). Rule 37(b)(2) sets forth a list of sanctions available when a party fails to comply
with a court order, including “dismissing the action or proceeding in whole or in part.” Fed. R.
Civ. P. 37(b)(2)(A)(v). Before levying dismissal or default as a sanction under Rule 37, a court
must first consider four factors:
(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. Volkswagon of America, Inc., 561 F.2d 494, 503–04 (4th Cir. 1977), cert. denied, 434
U.S. 102 (1978)).
In applying these factors to this case, I must be cognizant of the realities of multidistrict
litigation and the unique problems an MDL judge faces. Specifically, when handling seven MDLs,
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 individuality”). I must define rules for discovery and settlement conferences
and 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

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with these procedures thereafter. In re Phenylpropanolamine, 460 F.3d at 1231–32. Pretrial
orders—and the parties’ compliance with those orders and their deadlines—“are the engine that
drives disposition on the merits.” Id. at 1232. 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
PTO # 82 required Ms. Gaither to attend a mandatory settlement conference on July 18,

2017. PTO # 82 explicitly stated: “any plaintiff who fails to comply with this PTO may be subject
to a substantial sanction, including dismissal with prejudice.” PTO # 82 at 1–2. Applying the
Wilson factors to these facts and bearing in mind the unique context of multidistrict litigation, I
conclude that sanctions under Rule 37 are justified.
The first factor—bad faith—is difficult to ascertain given that the plaintiff was not present
in court to respond to the defendants’ motion. While I am cognizant of the difficulties that are
presented by a plaintiff not being represented by counsel, those difficulties do not excuse the
plaintiff herself from her obligation to pursue her case actively. 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.”). Simply stated, a pro se
litigant is not immune from sanctions for failure to comply with court orders. “Pro se litigants are
entitled to some deference from courts. But they as well as other litigants are subject to the time
requirements and respect for court orders without which effective judicial administration would

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be impossible.” Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (internal citations omitted).
PTO # 82 expressly states that failure to attend the mandatory settlement conference could result
in sanctions. This court spent considerable resources attempting to notify the plaintiff of this
mandatory settlement conference and the consequences of failing to comply with my order. The
plaintiff nevertheless failed to comply. Therefore, I must weigh the first factor against the plaintiff.
The second factor—prejudice caused by noncompliance—also leans toward an order for
sanctions. The plaintiff had over one-month’s notice of the mandatory settlement conference, yet
failed to engage with Cook in good faith settlement negotiations or communicate any inability to
attend the mandatory settlement conference before the June 30, 2017 meet and confer deadline.
See PTO # 80 ¶ 1. Cook, having no indication that the plaintiff would fail to attend, likely spent
that time preparing for settlement negotiations. Cook has also expended substantial resources on
motions, lawyers, travel and time spent attempting to reach the plaintiff unsuccessfully.
Furthermore, because Cook has had to divert their attention away from responsive plaintiffs to
attempt to reach the plaintiff in this action, the delay has unfairly impacted the progress of the
remaining cases in this MDL.
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.
Furthermore, I expect to have to evaluate and dispose of numerous motions similar to the one at
bar, thereby directing my 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),

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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).
Wilson’s fourth factor directs the court to consider the effectiveness of lesser sanctions. In
light of the evidence, the court opts to impose a monetary sanction on the plaintiff in the amount
of $500.00 rather than the greater sanction of immediate dismissal with prejudice. I find that
$500.00 is a minimally representative valuation of Cook’s expenses. This number accounts for the
time and money Cook spent identifying the plaintiff as one of the non-compliant plaintiffs;
assessing the effect of her lack of compliance with court orders; and preparing an argument for
sanctions. All knowledgeable MDL counsel would consider these efforts, which would have been
avoided had the plaintiff followed the court’s order, to be worth $500.00, at the least. This course
of action is consistent with PTO # 82, which warned the plaintiff of the possibility of a substantial
sanction. PTO # 82 (“[A]ny plaintiff who fails to comply with this PTO may be subject to a
substantial sanction, including dismissal with prejudice.”). Accordingly, I find that the plaintiff
shall pay a sanction of $500.00 to Cook, which if not paid within 30 days of this order, shall result
in dismissal of the plaintiff’s case against Cook with prejudice without further notice.
IV.

Conclusion
It is ORDERED that Cook’s motion to show cause is GRANTED. It is further

ORDERED that Cook’s motion to dismiss is TAKEN UNDER ADVISEMENT. It is further
ORDERED that, within 30 days, the plaintiff pay Cook a $500.00 monetary sanction and show
cause why her case should not be dismissed with prejudice.2 In the event the plaintiff does not pay
Cook $500.00 and show cause within 30 days, the plaintiff’s claims against Cook shall be
dismissed with prejudice without further notice to the plaintiff.

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The plaintiff may contact plaintiffs’ leadership counsel regarding payment.

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The court DIRECTS the Clerk to send a copy of this Order to plaintiff via certified mail,
return receipt requested, and to counsel. The court further DIRECTS the Clerk to post this order
on the court’s website for 30 days.

ENTER:

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July 21, 2017