Fyffe v. Ethicon, Inc. et al
MEMORANDUM OPINION AND ORDER granting 10 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 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
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2327
THIS DOCUMENT RELATES TO:
Fyffe v. Ethicon, Inc., et al.
Civil Action No. 2:14-cv-07753
MEMORANDUM OPINION AND ORDER
Pending before the court is a Motion to Dismiss with Prejudice filed by Ethicon, Inc. and
Johnson & Johnson (collectively “Ethicon”). [Docket 10]. Plaintiff has responded, Ethicon has
replied, and I have considered the parties’ filings.
Ethicon’s Motion arises from this court’s Order [Docket 8], entered on July 23, 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 8], at 4-7 (applying the Wilson factors to Ms. Fyffe’s case)).1
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
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 plaintiff’s 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 plaintiff “a final chance to
comply with discovery.” (Id. at 7). I afforded her 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.).2 Despite this warning, Ms. Fyffe has again
refused to comply with this court’s orders and did not provide Ethicon with her PPF within the 30day period. Consequently, Ethicon moved to dismiss the case with prejudice.
Because the less drastic sanction instituted against Ms. Fyffe has had no effect on her
compliance with and response to this court’s discovery orders, which she has continued to blatantly
disregard, I find that dismissal with prejudice is now appropriate. For the reasons explained in my
July 23, 2015 Order [Docket 8], it is ORDERED that Ethicon’s Motion to Dismiss with Prejudice
[Docket 10] 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
I also ordered plaintiff’s counsel to send a copy of the order to the plaintiff via certified mail, return receipt
requested, and file a copy of the receipt (id. at 7), and counsel has complied [Docket 9].
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