Wiedersberg v. Ethicon, Inc. et al
Filing
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MEMORANDUM OPINION AND ORDER granting 13 MOTION by Ethicon, Inc., Ethicon, LLC, Johnson & Johnson to Dismiss With Prejudice for Failure to Serve Plaintiff Profile Form, as more fully set forth herein. This case is DISMISSED with prejudice Signed by Judge Joseph R. Goodwin on 11/10/2015. (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:
ETHICON, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2327
THIS DOCUMENT RELATES TO:
Wiedersberg v. Ethicon, Inc., et al.
Civil Action No. 2:13-cv-22221
MEMORANDUM OPINION AND ORDER
Pending before the court is a Motion to Dismiss with Prejudice filed by Ethicon, Inc.,
Ethicon, LLC, and Johnson & Johnson (collectively “Ethicon”). [Docket 13]. Plaintiff has not
responded, and the deadline for responding has expired. Thus, this matter is ripe for my review.
Ethicon’s Motion arises from this court’s Order [Docket 12], entered on August 18, 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 # 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 [Docket 12], at 4–7 (applying the Wilson factors to Ms. Wiedersberg’s
case)).1 Concluding that the first three factors weighed in favor of sanctions as requested by
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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.
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Ethicon, I nevertheless declined to award the requested sanction of $100 for each day the plaintiff’s
PPF was late 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 discovery.” (Id. at 7). I afforded her 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.). Despite this warning, Ms.
Wiedersberg has again refused to comply with this court’s orders and did not provide Ethicon with
her PPF within the 30-day period. Consequently, Ethicon moved to dismiss the case with prejudice.
Because the less drastic sanction instituted against Ms. Wiedersberg 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 with prejudice is now appropriate. For the reasons
explained in my August 18, 2015 Order [Docket 12], it is ORDERED that Ethicon’s Motion to
Dismiss with Prejudice [Docket 13] is GRANTED, and this case is DISMISSED with prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER: November 10, 2015
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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