Myers et al v. Boston Scientific Corporation

Filing 12

ORDER denying 9 MOTION by Dennis Myers, Kateva Myers for Reconsideration of the 8 Order Dated 1/21/2016; the plaintiffs filed 7 Plaintiffs' Response in Opposition to Defendants' Motion to Dismiss and attached a Plaintiff Profile Form containing personal data as identified in Local Rule of Civil Procedure 5.2.1(a); the Clerk is directed to strike the documents at ECF No. 7-1 and remove the images from the docket; Plaintiffs' counsel is directed to refrain from filing such records in the future without proper redaction. Signed by Judge Joseph R. Goodwin on 2/16/2016. (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:

BOSTON SCIENTIFIC CORP.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2326

THIS DOCUMENT RELATES TO:
Myers, et al. v. Boston Scientific Corp.

Civil Action No. 2:13-cv-30681
ORDER

Pending before the court is the plaintiffs’ Motion for Reconsideration of the Order Dated
January 21, 2016 [ECF No. 9]. The defendant has responded to the motion [ECF No. 11], making
it ripe for decision. For the reasons stated below, the plaintiffs’ Motion for Reconsideration 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 over 70,000 cases currently
pending, over 18,000 of which are in the BSC MDL, MDL 2326. 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”) # 16, for example, ensures that Boston Scientific Corp.
(“BSC”) receives the plaintiff-specific information necessary to defend the cases against it. Under
PTO # 16, 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 # 16 [ECF No. 211], No. 2:12-md2326 (S.D. W. Va. Oct. 4, 2012). Each plaintiff must submit a PPF within 60 days of filing a Short
Form Complaint. (Id. ¶ 1b). Failure to do so subjects the plaintiff “to sanctions, to be determined
by the court, upon motion of the defendants.” (Id. ¶ 1i). The parties jointly drafted the requirements
for PTO # 16, and I entered it as applicable to every one of the thousands of cases in this MDL.
In this case, the plaintiffs failed to provide a PPF in a timely fashion as required by PTO #
16. BSC moved for sanctions in the form of a dismissal or reasonable monetary sanctions. After
BSC moved for sanctions, the plaintiffs sent BSC the completed PPF. Because the plaintiffs were
late in sending the PPF, I ordered the plaintiffs to pay BSC $1000 as minimal partial compensation
for the reasonable expenses caused by the plaintiff’s failure to comply with discovery. Order [ECF
No. 8] (S.D. W. Va. Jan. 21, 2016).
II. Discussion
The Fourth Circuit has recognized three grounds under which a court may grant a motion
to amend or alter an earlier judgment: “(1) to accommodate an intervening change in controlling
law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.” Pacific Ins. Co. v. American Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir. 1998) (emphasis added). The rule is intended to spare the parties and the appellate courts the
costs and burdens of unnecessary appellate proceedings. Id. Rule 59(e) motions, however, are not
the proper venue “to raise arguments which could have been raised prior to the issuance of the
judgment, nor may they be used to argue a case under a novel legal theory that the party had the
ability to address in the first instance.” Id. “In general, reconsideration of a judgment after its entry
is an extraordinary remedy which should be used sparingly.” Id. (quoting 11 Wright et al., Federal
Practice and Procedure § 2810.1, at 127-28 (2d ed. 1995)).

In their motion for reconsideration, the plaintiffs argue that “[t]o require Plaintiffs’ counsel
to pay Defendant a fee in the amount of $1,000 and supply Plaintiff with to [sic.] a copy of the
Court’s Order…is precisely the type of manifest injustice contemplated by Rule 59(e).” Mem. of
Law in Supp. of Pls.’ Mot. for Reconsideration 2 [ECF No. 10]. The plaintiffs misstate and
mischaracterize my January 21, 2016 Order. Order [ECF No. 8] (S.D. W. Va. Jan. 21, 2016)
(granting monetary sanctions and denying sanction of dismissal with or without prejudice).
Contrary to the plaintiffs’ contentions, I did not state in my Order that the plaintiffs must provide
the defendant with another copy of the Plaintiff Profile Form (“PPF”). Rather, I noted that, as of
the date of my Order, the plaintiffs had already provided the PPF to the defendant, albeit much
later than required under PTO # 16. See PTO # 16 [ECF No. 211], No. 2:12-md-2326 (S.D. W.
Va. Oct. 4, 2012).
The plaintiffs further characterize my Order of January 21 as manifestly unjust “given the
fact that Plaintiff supplied Defendant with a PPF one day after Defendant filed its Motion for
Sanctions.” Mem. of Law in Supp. of Pls.’ Mot. for Reconsideration 3 [ECF No. 10]. The speed
at which the plaintiffs turned over the PPF after BSC moved for sanctions, however, was not
relevant in my decision to sanction the plaintiffs $1000. Instead, the sanctions came about because,
pursuant to PTO # 161, the plaintiffs’ PPF was due January 31, 2014. The plaintiffs did not submit
their PPF until on or about December 18, 2015. The plaintiffs were thus approximately 686 days
late in sharing a completed PPF with BSC.

“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 these deficiency cure procedures…Any 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.” See PTO # 16 ¶¶ g and i [ECF No. 211], No. 2:12-md-2326 (S.D. W.
Va. Oct. 4, 2012).
1

“[A] showing of manifest injustice requires that there exist a fundamental flaw in the court's
decision that without correction would lead to a result that is both inequitable and not in line with
applicable policy.” In re Yankah, 514 B.R. 159, 166 (E.D. Va. 2014) (quoting Westerfield v. United
States, 366 Fed.Appx. 614, 619 (6th Cir.2010)). The plaintiffs provide no substantive reasons for
why the sanction I ordered is unreasonable. A reasonable $1000 sanction for failing to provide
BSC with a PPF in the prescribed timeframe certainly could not be said to be “manifestly unjust.”
III. Conclusion
For the reasons stated above, it is ORDERED that the Plaintiffs’ Motion for
Reconsideration of the Order Dated January 21, 2016 [ECF No. 9] is DENIED.
Additionally, the plaintiffs filed Plaintiffs’ Response in Opposition to Defendants’ Motion
to Dismiss and attached a Plaintiff Profile Form containing personal data as identified in Local
Rule of Civil Procedure 5.2.1(a). [ECF No. 7-1]. It is ORDERED that the Clerk strike the
documents [ECF No. 7-1] and remove the images from the docket. Plaintiffs’ counsel is directed
to refrain from filing such records in the future without proper redaction.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER: February 16, 2016