Kocher-Diehl v. Ethicon, Inc. et al

Filing 9

ORDER denying 6 MOTION by Ethicon, Inc., Johnson & Johnson for Sanctions for Failure to Timely Serve Plaintiff Profile Form. It is further ORDERED that the plaintiff has 30 business days from the entry of this Order to submit to Ethicon a comple ted PPF. Failure to comply with this Order will result in dismissal with prejudice upon motion by the defendant. Finally, it is ORDERED that plaintiff's counsel send a copy of this Order to the plaintiff via certified mail, return receipt requested, and file a copy of the receipt. Signed by Judge Joseph R. Goodwin on 6/17/2015. (cc: counsel of record; any unrepresented party) (ts)

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:
Renee Kocher-Diehl v. Ethicon, Inc., et al.

Civil Action No. 2:13-cv-28765
ORDER

Pending before the court is Ethicon, Inc., Ethicon, LLC, and Johnson & Johnson’s
(collectively “Ethicon”) Motion for Sanctions [Docket 6]. For the reasons stated below, Ethicon’s
Motion for Sanctions [Docket 6] 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. In the seven MDLs, there are nearly 70,000 cases
currently pending, approximately 25,000 of which are in the Ethicon, Inc. MDL, MDL 2327.
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”) # 17, 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 # 17, In re: Ethicon, Inc., Pelvic Repair System
Prods.

Liab.

Litig.,

No.

2:12-md-2327,

entered

Oct.

4,

2012,

available

at

http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html). The parties jointly drafted the
requirements for PTO # 17, and I entered it as applicable to every one of the thousands of cases in
this MDL. The instant plaintiff, however, did not comply with PTO # 17 in that she wholly failed
to submit a completed PPF, and on this basis, Ethicon now moves for sanctions against the
plaintiff. Specifically, Ethicon asks for a monetary sanction of $100 per day since January 12,
2014, the deadline for service of the plaintiff’s PPF. As of today, that total is $52,200.
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)).1
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. 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

1

Although Ethicon does not seek default or dismissal in this case, I nevertheless find the Wilson factors instructive
and applicable to the instant motion, given the harsh monetary sanction at issue and the possibility, as explained below,
that if the plaintiff does not comply with this Order, Ethicon may move for dismissal with prejudice.

2

(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 and
administered 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 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 # 17, each plaintiff is required to submit a completed PPF within 60 days

of filing a Short Form Complaint. (PTO # 17 ¶ 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

3

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 # 17 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 # 17 ¶ 1i).
Here, the plaintiff filed her complaint on November 12, 2013, and her PPF was due to
Ethicon by January 11, 2014. As of the date of this Order, the plaintiff has not submitted a PPF,
making it 522 days late. Accordingly, pursuant to PTO # 17, Ethicon seeks remedy from the court
for this discovery failure in the form of monetary sanctions. The plaintiff responds that these
sanctions are not appropriate because the sole reason for the discovery deficiency is plaintiff’s
counsel’s inability to obtain a response from Ms. Kocher-Diehl despite multiple attempts. The
plaintiff proposes a lesser sanction, such as dismissal without prejudice.2 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 plaintiff 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 plaintiff’s counsel has not had
recent contact with Ms. Kocher-Diehl. However, counsel’s inability to contact the plaintiff is not
an excuse and instead indicates a failing on the part of the plaintiff, who has an obligation to
provide counsel with any information needed to prosecute her case, including up-to-date contact
information. 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.”). Furthermore, as set forth in PTO # 4, “[a]ll attorneys representing parties to this

The plaintiff also reiterates the arguments in lead counsel’s omnibus motion seeking clarification and amendment of
PTO # 17. (See Pls.’ Mot. to Clarify & Amend PTO # 17 & Pl. Leadership Counsel’s Position on Defs.’ Mots. for
Sanctions, No. 2:12-md-02327 [Docket 1558], at 15). By Order entered on June 2, 2015, this motion was denied. (See
PTO # 180, No. 2:12-md-02327 [Docket 1582]).
2

4

litigation . . . bear the responsibility to represent their individual client or clients.” (PTO # 4 ¶ C,
In re: Ethicon Pelvic Repair System Prods. Liab. Litig., No. 2:12-md-002327, entered Apr. 17,
2012, available at http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html). This includes
awareness of and good faith attempts at compliance with all PTOs and other court orders. PTO
# 17—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 plaintiff nevertheless failed to comply
for more than a year. 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 plaintiff. 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.”).
The second factor—prejudice caused by noncompliance—also leans toward the order of
sanctions. Without a PPF, Ethicon 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 Ethicon has had to divert its
attention away from timely plaintiffs and onto Ms. Kocher-Diehl, the delay has unfairly impacted
the progress of the remaining plaintiffs in MDL 2327.
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 Ethicon’s counsel, more than 800 plaintiffs have failed to supply Ethicon
with a timely PPF. In fact, of the motions filed by Ethicon to date, the majority of these plaintiffs,

5

including Ms. Kocher-Diehl, have failed to supply a PPF at all. Consequently, the court expects to
have to evaluate and dispose of 800 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).
Application of the first three factors demonstrates that this court is justified in sanctioning
the plaintiff. But imposing Ethicon’s requested sanction of $100 for each day the plaintiff’s PPF
was late—a total of $52,200—would offend the court’s duty under Wilson’s fourth factor, which
is to consider the effectiveness of lesser sanctions.3 Accordingly, rather than imposing harsh
monetary sanctions at this time, the court opts for a lesser sanction and allows Ms. Kocher-Diehl
one more chance to comply with PTO # 17 subject to dismissal with prejudice, upon motion by
the defendant, if she fails to do so. This course of action is consistent with PTO # 17, which warned
plaintiffs of the possibility of dismissal upon failure to submit a timely PPF. (See PTO # 17 ¶ 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 nearly 25,000 cases.
The court cannot spare its already limited resources enforcing and monitoring sanctions that are

3

Not to mention, the Fourth Circuit has prohibited monetary fines that go beyond that which is compensatory absent
notice and an opportunity to be heard. See Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 42 (4th Cir. 1995)
(holding that a punitive fine imposed by a court under Rule 37 is “effectively a criminal contempt sanction, requiring
notice and the opportunity to be heard” (quoting Buffington v. Baltimore Cnty., 913 F.2d 113, 133–35 (4th Cir. 1990))).

6

qualified by the individual circumstances of each case, nor would it be fair for the court to place
this responsibility on Ethicon. Therefore, considering the administrative and economic realities of
multidistrict litigation, I conclude that affording Ms. Kocher-Diehl 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 construed and administered to secure the just,
speedy, and inexpensive determination of every action and proceeding”).
IV.

Conclusion
It is ORDERED that Ethicon’s Motion for Sanctions [Docket 6] is DENIED. It is further

ORDERED that the plaintiff has 30 business days from the entry of this Order to submit to
Ethicon a completed PPF. Failure to comply with this Order will result in dismissal with prejudice
upon motion by the defendant. Finally, it is ORDERED that plaintiff’s counsel send a copy of this
Order to the plaintiff via certified mail, return receipt requested, and file a copy of the receipt.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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June 17, 2015