Chancellor v. Boston Scientific Corporation et al

Filing 12

ORDER It is ORDERED that the defendant's 8 MOTION by Boston Scientific Corporation to Dismiss 1 Short Form Complaint for Failure to Timely Provide Plaintiff Profile Form Per PTO 16 is GRANTED in part to the extent defendants seek dismissal but DENIED insofar as they seek dismissal with prejudice. This case is thereby DISMISSED without prejudice. Signed by Judge Joseph R. Goodwin on 2/12/2015. (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:

BOSTON SCIENTIFIC CORP.
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL NO. 2326

THIS DOCUMENT RELATES TO:
Teresa Annette Chancellor v. Boston Scientific Corp., et al.

Civil Action No. 2:14-cv-06804

MEMORANDUM OPINION & ORDER
Pending before the court is defendant Boston Scientific Corporation’s Motion to Dismiss
for Failure to Timely Provide Plaintiff Profile Form per PTO 16 (“Motion to Dismiss”) [Docket
8], filed on September 23, 2014. For the reasons stated below, the motion is GRANTED in part
to the extent that defendant seeks dismissal but DENIED insofar as defendant seeks dismissal
with prejudice. The court ORDERS that this case be DISMISSED without prejudice.
I.

Background

This case is one of over 70,000 cases that have been assigned to me by the Judicial Panel
on Multidistrict Litigation regarding alleged defects in transvaginal surgical mesh used to treat
stress urinary incontinence and pelvic organ prolapse. Managing multidistrict litigation (“MDL”)
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’
responsibilities. Pretrial Order # 16, 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 Pretrial Order # 16 (“PTO #16” or the “Order”), In re: Boston Scientific

Corp. Pelvic Repair System Prods. Liab. Litig., No. 2:12-md-002326 [Docket # 211], entered
Oct. 4, 2012, available at http://www.wvsd.uscourts.gov/MDL/boston/orders.html). The parties
jointly drafted PTO # 16, and I entered it as applicable to every one of the thousands of cases in
this MDL. The plaintiff in this case, however, did not comply with PTO # 16 in that she failed to
submit a completed PPF within the time allotted, and on this basis, the defendant now moves to
dismiss the plaintiff’s case with prejudice.
II.

Legal Standard

Federal Rule of Civil Procedure 16 provides that “[o]n motion or on its own, the court
may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or
its attorney . . . fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C).
Rule 37 provides that where a party “fails to obey an order to provide or permit
discovery, . . . the court where the action is pending may issue further just orders[,]” including
orders dismissing the action. Fed. R. Civ. P. 37(b)(2)(A)(v); see also Mut. Fed. Sav. & Loan
Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (“Rule 37(d) of the Federal
Rules of Civil Procedure gives the district court wide discretion to impose sanctions for a party’s
failure to comply with its discovery orders.”).
Case management is particularly important in MDLs. Pretrial orders such as PTO #16
“provide[] some necessary order and clarity to the pre-trial process without burdening plaintiff
unduly.” Rabb v. Amatex Corp., 769 F.2d 996, 999 (4th Cir. 1985) (upholding a district court’s
dismissal of an asbestos case for failure to comply with a pretrial discovery order). In an MDL
containing thousands of individual cases, I must strictly enforce rules to ensure that all parties
comply with deadlines and that the litigation flows smoothly and efficiently. See Fed. R. Civ. P.
1 (“[The Federal Rules of Civil Procedure] should be construed and administered to secure the

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just, speedy, and inexpensive determination of every action and proceeding.”); see also In re
Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1229, 1232 (9th Cir. 2006) (“Case
management orders are the engine that drives disposition on the merits [in MDLs].”).
III.

Analysis

Pursuant to PTO #16, each plaintiff is required to submit a completed PPF within 60 days
of filing a Short Form Complaint. (PTO # 16, ¶ 1). 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
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 # 16 provided that “[i]f 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.” (Id ¶ 1g). Further, it stated 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.” (Id. ¶ 1i).
In this case, the plaintiff filed her complaint on February 1, 2014, and so her PPF was due
to the defendant by April 2, 2014. Plaintiff’s counsel subsequently requested six separate twentyone-day extensions to provide the PPF, and the defendant granted each extension request. On
July 28, 2014, the defendant made it clear that if the plaintiff did not provide a PPF by August
25, 2014, it would move to dismiss her case. The plaintiff has not taken advantage of these
extensions and, after more than a year, has not yet provided a PPF. 1 In response to the Motion to
Dismiss, plaintiff’s counsel admit that they do not have a completed PPF, and furthermore, they

1

Indeed, there has been no activity on the docket since October 10, 2014, when the defendant filed its Reply in the
instant Motion [Docket 11].

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have been unable to contact their client despite repeated attempts. This, however, does not justify
the plaintiff’s failure to comply with discovery.
The plaintiff is responsible for providing her 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.”). In turn, as set forth in
PTO # 4, “[a]ll attorneys representing parties to this litigation . . . bear the responsibility to
represent their individual client or clients.” (PTO # 4 In re: Boston Scientific Pelvic Repair
System Prods. Liab. Litig., No. 2:12-md-002326 [Docket 103], ¶ C, entered Apr. 17, 2012,
available at http://www.wvsd.uscourts.gov/MDL/boston/ orders.html). Together, the plaintiff
and her counsel have the obligation “to move [the plaintiff’s] case to trial.” West v. City of N.Y.,
130 F.R.D. 522, 524 (S.D.N.Y. 1990). In doing so, they must be aware of the requirements of
this court’s pretrial orders, as well as the possible sanctions for noncompliance. See id. at 634
(stating that each party “is considered to have notice of all facts, notice of which can be charged
upon the attorney” (internal quotations omitted)). PTO #16—which was jointly drafted by both
parties’ counsel—expressly states that the failure to timely submit a PPF could result in
sanctions, including dismissal, as determined by the court upon motion by the defendants. (See
PTO # 16, ¶ 1g).
The Supreme Court has observed that “the most severe in the spectrum of sanctions
provided by statute or rule must be available to the district court in appropriate cases, not merely
to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those
who might be tempted to such conduct in the absence of such a deterrent.” Nat’l Hockey League

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v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976). This is particularly true in a large MDL
such as this one. As other courts have explained,
administering cases in multidistrict litigation is different from administering cases
on a routine docket . . . . Congress established MDL protocols to encourage
efficiency. In order to do so, MDL courts must be able to establish schedules with
firm cutoff dates if the coordinated cases are to move in a diligent fashion toward
resolution by motion, settlement, or trial. MDL courts must be given greater
discretion to organize, coordinate and adjudicate its proceedings, including the
dismissal of cases for failure to comply with its orders.
In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867 (8th Cir.
2007) (quoting in part In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d at 1229, 1232
(internal citations omitted)).
In exercise of this discretion, I FIND that the appropriate sanction for the plaintiff’s
failure to timely file a PPF is dismissal without prejudice.
IV.

Conclusion

It is ORDERED that the defendant’s Motion to Dismiss [Docket 8] is GRANTED in
part to the extent defendants seek dismissal but DENIED insofar as they seek dismissal with
prejudice. This case is thereby DISMISSED without prejudice. 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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February 12, 2015