Nonnamaker et al v. Ethicon, Inc. et al

Filing 9

MEMORANDUM OPINION AND ORDER granting 8 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss With Prejudice for Failure to Serve Plaintiff Profile Form, as more fully set forth herein. This case is DISMISSED with prejudice. Signed by Judge Joseph R. Goodwin on 11/12/2015. (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:
Nonnamaker, et al. v. Ethicon, Inc., et al.

Civil Action No. 2:14-cv-00136

MEMORANDUM OPINION AND ORDER
Pending before the court is a Motion to Dismiss with Prejudice filed by Ethicon, Inc.,
Ethicon, LLC, and Johnson & Johnson (collectively “Ethicon”). [Docket 8]. Plaintiffs have not
responded, and the deadline for responding has expired. Thus, this matter is ripe for my review.
Ethicon’s Motion arises from this court’s Order [Docket 7], entered on August 17, 2015,
denying Ethicon’s Motion for Sanctions, including monetary penalties, dismissal and any other
sanction deemed appropriate by the court, for failure to file a Plaintiff Profile Form (“PPF”) in
compliance with Pretrial Order # 17. 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 [Docket 7], at 4–7 (applying the Wilson factors to the plaintiffs’ case)).1

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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 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).

Concluding that the first three factors weighed in favor of sanctions as requested by Ethicon, I
nevertheless declined to award the requested sanction of $100 for each day the PPF was late
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 the plaintiffs “a final chance to
comply with discovery.” (Id. at 7). I afforded the plaintiffs 30 business days from the entry of the
Order to submit to Ethicon a completed PPF, with the caveat that a failure to do so “will result in
dismissal with prejudice upon motion by the defendant.” (Id.). Despite this warning, the plaintiffs
have again refused to comply with this court’s orders and did not provide Ethicon with their PPF
within the 30-day period. Consequently, Ethicon moved to dismiss the case with prejudice.
Because the less drastic sanction instituted against the plaintiffs has had no effect on their
compliance with and response to this court’s discovery orders, which the plaintiffs have continued
to blatantly disregard, I find that dismissal with prejudice is now appropriate. For the reasons
explained in my August 17, 2015 Order [Docket 7], it is ORDERED that Ethicon’s Motion to
Dismiss with Prejudice [Docket 8] is GRANTED, and this case is DISMISSED with prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER: November 12, 2015

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