Holland et al v. C. R. Bard, Inc. et al
Filing
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ORDER granting 8 JOINT MOTION by C. R. Bard, Inc., Tissue Science Laboratories Limited to Dismiss; plaintiffs' case is dismissed with prejudice. Signed by Judge Joseph R. Goodwin on 1/12/2017. (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:
C. R. BARD, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2187
THIS DOCUMENT RELATES TO:
Arlyce Holland, et al. v. C. R. Bard, Inc., et al.
Civil Action No. 2:14-cv-10090
ORDER
Pending before the court is Defendants’ Joint Motion to Dismiss and Incorporated
Memorandum of Law in Support [ECF No. 8], to which the plaintiffs have not responded. For the
reasons stated below, the Motion is GRANTED.
I.
Background
This case resides in the Bard MDL, 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 60,000 cases
currently pending, approximately 8,000 of which are in the Bard MDL. Managing this many cases
in multidistrict litigation requires the court to streamline certain litigation procedures, such as
ordering mandatory settlement conferences, to improve efficiency for the parties and the court.
On August 29, 2016, I entered Pretrial Order (“PTO”) # 219 directing all plaintiffs in the
Bard MDL alleging claim(s) against Covidien LP, Sofradim Production SAS, and/or Tissue
Science Laboratories Limited (the “Covidien Defendants”) to provide the defendants with proof
of product identification and relevant medical records on or before September 22, 2016. MDL
2187, PTO # 219 ¶ A [ECF No. 2248]. On that same day, I entered PTO # 220 ordering those same
parties to engage in good faith settlement negotiations on or before October 13, 2016, and notifying
all parties that the court would conduct a mandatory settlement conference on October 25, 2016.
MDL 2187, PTO # 220 ¶ 1, ¶ 3 [ECF No. 2253]. Pursuant to PTO # 220, I entered PTO # 223 on
October 19, 2016, again notifying plaintiffs of the mandatory settlement conference on October
25, 2016 and their obligation to attend. MDL 2187, PTO # 223 [ECF No. 2571]. PTO # 223
explicitly states that “individual plaintiffs whose cases are scheduled for a settlement conference
shall appear in person for the settlement conference with counsel” and that “any plaintiff who fails
to comply with this PTO may be subject to a substantial sanction, including dismissal with
prejudice.” Id. at 2.
Neither the Hollands nor their counsel engaged in good faith settlement discussions or
appeared in person for the mandatory settlement conference on October 25, 2016. To date, the
plaintiffs have also failed to provide the defendants with proof of product identification and
relevant medical records pursuant to court order. The defendants now move for sanctions against
the plaintiffs, specifically requesting dismissal of the plaintiffs’ case with prejudice.
II.
Legal Standard
Federal Rule of Civil Procedure Rule 16(a)(5) permits the district courts to issue orders
regarding pretrial conferences for the purpose of facilitating settlement, and Rule 16(f) provides
that sanctions may be imposed against a party who fails to appear at a pretrial conference or fails
to obey a pretrial order. Fed. R. Civ. P. 16(a)(5), (f). Rule 37(b)(2) provides a list of sanctions
available when a party fails to comply with a court order, including “dismissing the action or
proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(v). Before levying dismissal or default
as a sanction under Rule 37, a court must first consider four factors:
(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
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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. Volkswagon of America, Inc., 561 F.2d 494, 503–04 (4th Cir. 1977), cert. denied, 434
U.S. 102 (1978)).
In applying these factors to this case, I must be cognizant of the realities of multidistrict
litigation and the unique problems an MDL judge faces. Specifically, when handling seven MDLs,
case management becomes of utmost importance. See In re Phenylpropanolamine Prods. Liab.
Litig., 460 F.3d 1217, 1231 (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 settlement conferences
and 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, administered, and employed by the court and the parties 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 their deadlines—“are the engine that
drives disposition on the merits.” Id. at 1232. 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.
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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
PTO # 223 required each plaintiff that remained in the Bard MDL with a claim against the
Covidien Defendants, despite good faith discussion contemplated in PTO # 220, to attend a
mandatory settlement conference on October 25, 2016. PTO #223 explicitly stated: “any plaintiff
who fails to comply with this PTO may be subject to a substantial sanction, including dismissal
with prejudice.” PTO # 223 at 2. Applying the Wilson factors to these facts and bearing in mind
the unique context of multidistrict litigation, I conclude that dismissal under Rule 37 is justified.
The first factor—bad faith—is difficult to ascertain given that the plaintiffs have not
responded to the defendants’ Motion. As this court has previously stated, “[a]ll attorneys
representing parties to this litigation . . . bear the responsibility to represent their individual client
or clients.” PTO # 3 ¶ F. This includes awareness of and good faith attempts at compliance with
all PTOs and other court orders. Furthermore, the plaintiffs themselves have an obligation to
actively pursue their case. 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.”). PTO # 223 expressly states that failure to attend the mandatory
settlement conference could result in sanctions. The plaintiffs nevertheless failed to comply.
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 plaintiffs. 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
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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 an order for
sanctions. Plaintiffs had two-months notice of the mandatory settlement conference, yet failed to
engage with opposing counsel in good faith settlement negotiations or communicate any inability
to attend the mandatory settlement conference before the October 13, 2016 meet and confer
deadline. See PTO # 220 ¶ 2. The defendants, having no indication that the plaintiffs would fail to
attend until the day before the scheduled appearance, spent those months trying to reach the
plaintiffs unsuccessfully and preparing for settlement negotiations. See Defs.’ Mot. at 2.
Furthermore, because the defendants have had to divert their attention away from timely plaintiffs
to attempt to reach the plaintiffs in this action, the delay has unfairly impacted the progress of the
remaining plaintiffs in this MDL.
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.
Furthermore, I expect to have to evaluate and dispose of numerous motions similar to the one at
bar, thereby directing my 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).
Wilson’s fourth factor directs the court to consider the effectiveness of lesser sanctions.
Here, any sanction short of immediate dismissal will be ineffective. The plaintiffs have willfully
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disregarded three consecutive PTOs and failed to respond to the defendants’ Motion to provide the
court with a justifiable reason for the plaintiffs’ noncompliance. This course of action is consistent
with PTO # 223, which warned plaintiffs of the possibility of dismissal upon failure to comply
with my order. PTO # 223 (“[A]ny plaintiff who fails to comply with this PTO may be subject to
a substantial sanction, including dismissal with prejudice.”). Accordingly, the court opts to dismiss
the plaintiffs’ case with prejudice.
IV.
Conclusion
It is ORDERED that Defendants’ Joint Motion to Dismiss [ECF No. 8] is GRANTED. It
is ORDERED that the plaintiffs’ 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:
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January 12, 2017
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