Gardiner et al v. Ethicon, Inc. et al

Filing 18

MEMORANDUM OPINION & ORDER denying 17 MOTION by American Medical Systems, Inc. to Dismiss, as more fully set forth herein; the plaintiffs have 30 business days from the entry of this Order to submit a completed PPF to AMS; the plaintiffs are remin ded that the PPF and other forms relevant to participating in this MDL are available at http://www.wvsd.uscourts.gov/MDL/amsinc/forms.html; information on where to submit the PPF is also available on the court's website; failure to comply with this Order may result in dismissal with prejudice upon motion by the defendants. Signed by Judge Joseph R. Goodwin on 8/2/2016. (cc: counsel of record; plaintiff via certified mail, return receipt requested) (bdr)

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:

Gardiner, et al. v. Ethicon, Inc., et al

Civil Action No. 2:13-cv-22370

MEMORANDUM OPINION & ORDER
Pending before the court is defendant’s, American Medical Systems, Inc.,
(“AMS”), Motion to Dismiss [ECF No. 17]. The plaintiffs have not responded, and the
deadline for responding has expired. Thus, this matter is ripe for my review. For the
reasons stated below, AMS’s Motion to Dismiss [ECF No. 17] 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. 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”)
# 19, 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 # 19, No. 2:12-md-2325, entered Oct. 4, 2012 [ECF No. 302].
The parties jointly drafted the requirements for PTO # 19, 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 # 19 in that they wholly failed to submit a
completed PPF, and on this basis, AMS now moves for dismissal and reasonable
sanctions against the plaintiffs. Specifically, AMS seeks reasonable monetary
sanctions, dismissal of the plaintiffs’ case with prejudice, 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.

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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 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

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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 # 19, each plaintiff is required to submit a completed PPF

within 60 days of filing a Short Form Complaint. PTO # 19 at ¶ 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 # 19 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 # 19 at ¶ 1i.
I am cognizant of the difficulties that are presented by the plaintiffs not being
represented by counsel at this time. The pro se litigant, however, is not immune from
sanctions for failing 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 be impossible.” Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir.
1989) (internal citations omitted).
Here, the plaintiffs case was transferred from the Eastern District of Texas on
August 28, 2013, and, pursuant to PTO # 19, the PPF was due to AMS by October 28,

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2013. As of the date of this Order, the plaintiffs have not submitted a PPF, making it
1009 days late. AMS asks the court to dismiss the plaintiffs’ case or, alternatively,
sanction the plaintiffs a reasonable monetary penalty under the terms and conditions
that the court deems appropriate. The plaintiffs made no response to AMS’s motion
to dismiss. 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 the plaintiffs did
not respond. However, appearing before this court pro se is not itself an excuse for
failing to comply with court orders and instead indicates a failing on the part of the
plaintiff, who has an obligation to comply with discovery requests and time deadlines.
PTO # 19—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.”).

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The second factor—prejudice caused by noncompliance—also leans toward the
order of sanctions. Without a PPF, AMS 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 AMS has had to divert its attention away from timely plaintiffs
and onto Ms. Gardiner, the delay has unfairly impacted the progress of the remaining
plaintiffs.
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 AMS’s counsel, a
considerable number of plaintiffs have failed to supply AMS with a timely PPF. In
fact, of the motions filed by AMS to date, the majority of these plaintiffs, including
Ms. Gardiner, 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 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).

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Application of the first three factors demonstrates that this court is justified in
sanctioning the plaintiffs.

However, application of the fourth factor—the

effectiveness of less drastic sanctions—counsels against the relief sought by the
defendants. Rather than imposing harsh sanctions at this time, the court opts for a
lesser sanction and allows Ms. Gardiner one more chance to comply with PTO # 19
subject to dismissal, upon motion by the defendants, if she fails to do so. This course
of action is consistent with PTO # 19, which warned plaintiffs of the possibility of
dismissal upon failure to submit a timely PPF. See PTO # 19 at ¶ 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 over 9,000 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 AMS.
Therefore, considering the administrative and economic realities of multidistrict
litigation, I conclude that affording Ms. Gardiner 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

7

construed, administered, and employed by the court and the parties to secure the
just, speedy, and inexpensive determination of every action and proceeding”).
IV.

Conclusion
It is ORDERED that AMS’s Motion to Dismiss [ECF No. 17] is DENIED. It is

further ORDERED that the plaintiffs have 30 business days from the entry of this
Order to submit a completed PPF to AMS. The plaintiffs are reminded that the PPF
and other forms relevant to participating in this MDL are available at
http://www.wvsd.uscourts.gov/MDL/amsinc/forms.html. In addition, information on
where to submit the PPF is also available on the court’s website. Failure to comply
with this Order may result in dismissal with prejudice upon motion by the
defendants.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and to the plaintiff via certified mail, return receipt requested to the following
address:
Kari and Christopher Gardiner
11203 Ranch Road 2222 #1605
Austin, TX 78730

ENTER:

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August 2, 2016