Gardiner et al v. Ethicon, 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 plaintiffs pay Cook a $500.00 monetary sanction and show cause why their case should not be di smissed with prejudice; in the event the plaintiffs do not pay Cook $500.00 and show cause within 30 days, the plaintiffs' claims against Cook shall be dismissed with prejudice without further notice to the plaintiffs. Signed by Judge Joseph R. Goodwin on 7/21/2017. (cc: counsel of record; plaintiffs, 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:
Kari Gardiner, et al. v. Cook Medical, LLC, et al.

Civil Action No. 2:13-cv-22370

ORDER
On July 18, 2017, the court conducted a mandatory settlement conference as to the
plaintiffs’ claims against defendant Cook Medical, LLC (formerly known as Cook Medical, Inc.)
(“Cook”) only,1 which the plaintiffs were ordered to attend. When the plaintiffs, who are pro se,
did not appear in person at the settlement conference, counsel for Cook moved to show cause and,
if the plaintiffs do not comply, dismiss the plaintiffs’ 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

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Plaintiffs also filed claims against Ethicon, Inc., Ethicon, LLC, Johnson & Johnson, C. R. Bard, Inc., Sofradim
Production SAS, Boston Scientific Corporation, Coloplast Corp., and Mentor Worldwide, LLC. Those claims remain
pending and were not subject to the settlement conference order.

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.
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 plaintiffs again about the
mandatory settlement conference on July 18, 2017 and their obligation to attend. MDL 2440, PTO
# 82 [ECF No. 507]. I entered PTO # 82 in the main MDL and in the plaintiffs’ 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.
The plaintiffs did not engage in good faith settlement discussions with Cook, nor did they
appear in person for the mandatory settlement conference on July 18, 2017. During this
proceeding, the court called Ms. Gardiner’s name in the courtroom and had a Court Security
Officer call her name three times in the lobby outside the courtroom. The plaintiffs were not
present. Cook moved to show cause and, if the plaintiffs do not comply, Cook moved for sanctions
against the plaintiffs, specifically requesting dismissal of the plaintiffs’ 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)

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if a party fails to appear at a pretrial conference or fails to obey a scheduling or other pretrial order.
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

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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 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 the plaintiffs 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 plaintiffs were not
present in court to respond to the defendants’ motion. While I am cognizant of the difficulties that
are presented by plaintiffs not being represented by counsel, those difficulties do not excuse the
plaintiffs from their obligation to pursue their 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, pro se litigants
are 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

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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).
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 plaintiffs of this
mandatory settlement conference and the consequences of failing to comply with my order. The
plaintiffs nevertheless failed to comply. Therefore, I must weigh the first factor against the
plaintiffs.
The second factor—prejudice caused by noncompliance—also leans toward an order for
sanctions. The plaintiffs 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 plaintiffs 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 plaintiffs unsuccessfully.
Furthermore, because Cook has had to divert their attention away from responsive plaintiffs to
attempt to reach the plaintiffs 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

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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).
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 plaintiffs 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 plaintiffs as non-compliant plaintiffs; assessing the
effect of their 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs’ 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 plaintiffs pay Cook a $500.00 monetary sanction and show
cause why their case should not be dismissed with prejudice.2 In the event the plaintiffs do not pay

2

The plaintiffs may contact plaintiffs’ leadership counsel regarding payment.

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Cook $500.00 and show cause within 30 days, the plaintiffs’ claims against Cook shall be
dismissed with prejudice without further notice to the plaintiffs.
The court DIRECTS the Clerk to send a copy of this Order to plaintiffs 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