Gardiner et al v. Ethicon, Inc. et al

Filing 21

MEMORANDUM OPINION AND ORDER The 20 MOTION by American Medical Systems, Inc. to Dismiss is GRANTED, and AMS is DISMISSED with prejudice. Other defendants remain in this case. Signed by Judge Joseph R. Goodwin on 11/18/2016. (cc: counsel of record; plaintiffs, via certified mail, return receipt requested) (mek)

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, et al.

Civil Action No. 2:13-cv-22370

MEMORANDUM OPINION AND ORDER
Pending before the court is defendant, American Medical Systems, Inc.’s
(“AMS”) Motion to Dismiss. [ECF No. 20]. The plaintiffs, who are pro se, have 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.
AMS’s Motion arises from this court’s Order [ECF No. 18], entered on August
2, 2016 denying AMS’s Motion for Sanctions, including monetary penalties and
dismissal with prejudice, for failure to serve a Plaintiff Profile Form (“PPF”) in
compliance with Pretrial Order (“PTO”) # 19. 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. 18] (applying the Wilson factors to Ms. and Mr. Gardiner’s case).1

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

Concluding that the first three factors weighed in favor of sanctions as requested by
AMS, 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 plaintiffs a final chance to comply with the deadlines set forth in PTO #
19. I afforded them 30 business days from the entry of the Order to submit to AMS a
completed PPF, with the caveat that a failure to do so may result in dismissal of AMS
as a defendant in their case upon motion by AMS. Despite this warning, Ms. and Mr.
Gardiner have again failed to comply with this court’s orders and did not provide
AMS with a PPF within the 30-day period. Consequently, AMS moved to dismiss with
prejudice.
Because the less drastic sanction instituted against Ms. and Mr. Gardiner has
had no effect on their compliance with and response to this court’s discovery orders,
which they have continued to blatantly disregard, I find that dismissing AMS is now
appropriate. For the reasons explained in my August 2, 2016 Order [ECF No. 18], it
is ORDERED that the defendant’s Motion to Dismiss [ECF No. 20] is GRANTED, and
AMS is DISMISSED with prejudice. Other defendants remain in this case.

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, 561 F.2d at 503–06).

2

The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and to the plaintiffs via certified mail, return receipt requested to the following
address:
Kari and Christopher Gardiner
11203 Ranch Road 2222 #1605
Austin, TX 78730
ENTER:

3

November 18, 2016