Cavin v. Boston Scientific Corporation
MEMORANDUM OPINION AND ORDER granting 9 MOTION by Boston Scientific Corporation to Dismiss, as more fully set forth herein. This case is DISMISSED without prejudice. Signed by Judge Joseph R. Goodwin on 10/14/2016. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BOSTON SCIENTIFIC CORP.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2326
THIS DOCUMENT RELATES TO:
Cavin v. Boston Scientific Corp.
Civil Action No. 2:13-cv-19266
MEMORANDUM OPINION AND ORDER
Pending before the court is Boston Scientific Corp.’s (“BSC”) Motion to Dismiss
for Failure to Timely Serve her Plaintiff Profile Form [ECF No. 9]. The plaintiff has
not responded, and the deadline for responding has expired. Thus, this matter is ripe
for my review. For the reasons stated below, the motion is GRANTED.
BSC’s Motion arises from this court’s Order [ECF No. 8], entered on July 18,
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. 8] (applying the Wilson factors to Ms. Cavin’s case).1
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
Concluding that the first three factors weighed in favor of sanctions 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 plaintiff 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. Cavin 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. Cavin 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 July 18, 2016 Order [ECF No. 8], it is ORDERED that the
defendant’s Motion to Dismiss [ECF No. 9] is GRANTED, and the plaintiff’s case is
DISMISSED without prejudice. The court DIRECTS the Clerk to send a copy of this
Order to counsel of record and any unrepresented party.
ENTER: October 14, 2016
Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (citing Wilson, 561 F.2d at
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