McKelvey et al v. American Medical Systems, Inc.
MEMORANDUM OPINION & ORDER denying 12 MOTION by American Medical Systems, Inc. to Dismiss With Prejudice for Plaintiffs Dorothy McKelvey and James McKelvey's Failure to Comply with Pre-Trial Order #223; the plaintiffs have 30 days from the en try of this Order to submit to AMS a completed PFS with verifications and authorizations and to file a copy of the PFS in this case. The plaintiffs are reminded that the PFS and other forms relevant to participating in this MDL are available at http: //www.wvsd.uscourts.gov/MDL/amsinc/forms.html. Information on where to submit the PFS is also available on the courts website. Failure to comply with this Order may result in dismissal with prejudice upon motion by the defendant. The plaintiffs are O RDERED to advise the court of their correct address by 30 days from the entry of this Order. If the plaintiffs wish to receive email notification of case activity by way of Notice of Electronic Filing in a Civil Action, they must (1) register for a P ACER account at www.pacer.gov; AND (2) consent in writing to accept service by email notification of all documents (except summons and complaint, discovery materials and Rule 26 disclosures, and waive their right to personal service or service by fir st class mail pursuant to Fed. R. Civ. P. 5(b)(2)(D)). This consent must be filed in this case, and the plaintiffs must state that they have received the PACER account and provide their email address. Until then, or until the court obtains an updated address for the plaintiffs, the defendant must serve the plaintiffs by U.S. Mail at the address listed below. The Clerk is DIRECTED to send a copy of this Order to counsel of record and to the plaintiffs via certified mail, return receipt requested. Signed by Judge Joseph R. Goodwin on 8/7/2017. (cc: counsel of record; any unrepresented party) (hkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AMERICAN MEDICAL SYSTEMS, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2325
THIS DOCUMENT RELATES TO:
Dorothy McKelvey, et al., v. American Medical Systems, Inc.
Civil Action No. 2:14-cv-13122
MEMORANDUM OPINION & ORDER
Pending before the court is defendant, American Medical Systems, Inc.’s,
(“AMS”) Motion to Dismiss with Prejudice. [ECF No. 12]. The plaintiffs, who are pro
se, have not responded, and the deadline for responding has expired. Thus, this
matter is ripe for my review. For the reasons stated below, AMS’s Motion is DENIED.
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
approximately 50,000 cases currently pending, approximately 2,500 of which are in
the AMS MDL, MDL 2325. 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
Pretrial Order Number 223 (“PTO # 223”) provides that plaintiffs in 517 cases
in this MDL, including this case, were required to submit a Plaintiff Fact Sheet
(“PFS”) 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 # 223 at ¶ B, No. 2:12-md-2325, entered Oct. 21, 2016 [ECF No. 3216]. Here, the
plaintiffs failed to submit a completed PFS and AMS now moves for sanctions against
the plaintiffs for failure to comply with PTO # 223. Specifically, AMS seeks dismissal
of the plaintiffs’ case with prejudice.
Federal Rule of Civil Procedure 37(b)(2) allows a court to sanction a party for
failing to comply with discovery orders. See Fed. R. Civ. P. 37(b)(2) (stating that a
court “may issue further just orders” when a party “fails to obey an order to provide
or permit discovery”). Before levying a harsh sanction under Rule 37, such as
dismissal or default, a court must first consider the following four Wilson factors
identified by the Fourth Circuit Court of Appeals:
(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 v. Volkswagen of Am., Inc., 561 F.2d 494, 503–06 (4th Cir. 1977)).
In applying these factors to this case, I must be particularly cognizant of the
realities of multidistrict litigation and the unique problems an MDL judge faces.
Specifically, when handling seven MDLs containing thousands of individual cases,
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 then 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 the deadlines set forth therein—“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. 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.”).
Pursuant to PTO # 223, the plaintiffs were required to submit a completed PFS
by November 21, 2016. The purpose of the PFS, as was the case in In re
Phenylpropanolamine, is “to give each defendant the specific information necessary
to defend the case against it . . . [because] 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 # 223 provided that “[a]ny plaintiff who fails to comply with this PTO may
be subject to a substantial sanction, including dismissal with prejudice.”
PTO # 223 at ¶ E. As of the date of this Order, the plaintiffs have not submitted a
PFS, making it 259 days late.
I am cognizant of the difficulties presented by the plaintiffs not being
represented by counsel at this time. The pro se litigant, however, is not immune from
sanctions for failing to comply with court orders. “Pro se litigants are entitled to some
deference from courts . . . . But they as well as other litigants are subject to the time
requirements and respect for court orders without which effective judicial
administration would be impossible.” Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir.
1989) (internal citations omitted).
AMS asks the court to dismiss the plaintiffs’ case with prejudice. The plaintiffs
did not respond to AMS’s motion to dismiss. Applying the Wilson factors to these
facts, and bearing in mind the unique context of multidistrict litigation, I conclude
that although recourse under Rule 37 is justified, the plaintiffs should be afforded
one more chance to comply with discovery before further sanctions are imposed.
The first factor, bad faith, is difficult to ascertain, given that the plaintiffs did
not respond. However, appearing before this court pro se is not itself an excuse for
failing to comply with court orders and instead indicates a failing on the part of the
plaintiffs, who have an obligation to comply with discovery requests and time
deadlines. The plaintiffs failed to comply with PTO # 223 by timely submitting a PFS,
failed to respond to AMS’s Motion to Dismiss, and as of today have provided no
indication that they intend to submit a PFS. 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
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 the
order of sanctions. Without a PFS, AMS 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.” In re Phenylpropanolamine, 460 F.3d at 1234.
Furthermore, because AMS has had to divert its attention away from timely plaintiffs
and onto this case, the delay has unfairly affected the progress of the remaining
plaintiffs in MDL 2325.
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. In addition, the court expects to have to evaluate and
dispose of a significant number of motions similar to the one at bar, thereby directing
its 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
Application of the first three factors demonstrates that this court is justified in
sanctioning the plaintiffs. However, application of the fourth factor—the
effectiveness of less drastic sanctions—counsels against the relief sought by AMS.
Rather than imposing harsh sanctions at this time, the court opts for a lesser sanction
and allows the plaintiffs one more chance to comply with PTO # 223 subject to
dismissal, upon motion by the defendant, if they fail to do so. This course of action is
consistent with PTO # 223, which warned the plaintiffs of the possibility of dismissal
with prejudice upon failure to timely submit a PFS.
Alternative lesser sanctions, such as the ones outlined in Rule 37(b)(2)(i–iv),
are simply impracticable, and therefore ineffective, in the context of an MDL
containing approximately 2,500 cases. The court cannot spare its already limited
resources enforcing and monitoring sanctions that are qualified by the individual
circumstances of each case, nor would it be fair for the court to place this
responsibility on AMS. Therefore, considering the administrative and economic
realities of multidistrict litigation, I conclude that affording the plaintiffs a final
chance to comply with discovery, subject to dismissal with prejudice if they fail to do
so, is a “just order” under Rule 37 and in line with the Federal Rules of Civil
Procedure as a whole. See Fed. R. Civ. P. 1.
The court ORDERS that AMS’s Motion to Dismiss [ECF No. 12] is DENIED.
The court further ORDERS that the plaintiffs have 30 days from the entry of this
Order to submit to AMS a completed PFS with verifications and authorizations and
to file a copy of the PFS in this case. The plaintiffs are reminded that the PFS and
http://www.wvsd.uscourts.gov/MDL/amsinc/forms.html. Information on where to
submit the PFS is also available on the court’s website. Failure to comply with this
Order may result in dismissal with prejudice upon motion by the defendant.
Finally, the plaintiffs are ORDERED to advise the court of their correct
address by 30 days from the entry of this Order. If the plaintiffs wish to receive email
notification of case activity by way of Notice of Electronic Filing in a Civil Action, they
must (1) register for a PACER account at www.pacer.gov; AND (2) consent in writing
to accept service by email notification of all documents (except summons and
complaint, discovery materials and Rule 26 disclosures, and waive their right to
personal service or service by first class mail pursuant to Fed. R. Civ. P. 5(b)(2)(D)).
This consent must be filed in this case, and the plaintiffs must state that they have
received the PACER account and provide their email address. Until then, or until the
court obtains an updated address for the plaintiffs, the defendant must serve the
plaintiffs by U.S. Mail at the address listed below.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and to the plaintiffs via certified mail, return receipt requested to the following
Dorothy McKelvey & James McKelvey
100 Elkhorn Run Road
Monaca, PA 15061
August 7, 2017
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