Sweeney v. Mentor Worldwide LLC et al
MEMORANDUM OPINION & ORDER Defendants' 10 Motion to Compel and in the Alternative to Dismiss is GRANTED in part to the extent defendants seek an order compelling production of the PFS and DENIED in part and without prejudice as to the remainin g relief; the plaintiff must serve her completed PFS on defendants on or before 11/17/2017; failure to comply with this Order may result in dismissal upon motion by the defendants; plaintiff's counsel is directed to send a copy of this Order to the plaintiff via certified mail, return receipt requested, and file a copy of the receipt. Signed by Judge Joseph R. Goodwin on 10/19/2017. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
PELVIC SUPPORT SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2387
THIS DOCUMENT RELATES TO:
June C. Sweeney v. Mentor Worldwide LLC, et al.
Civil Action No. 2:14-cv-16696
MEMORANDUM OPINION & ORDER
Pending before the court is Defendants’ Motion to Compel and in the
Alternative to Dismiss [ECF No. 10] filed by Coloplast Corp. (“Coloplast”) and Mentor
Worldwide LLC (“Mentor”). The plaintiff has not responded, and the deadline for
responding has expired. Thus, this matter is ripe for my review. For the reasons
stated below, defendants’ Motion is GRANTED in part and DENIED in part.
The 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 42,000 cases currently pending, approximately 140 of which are in the
Coloplast MDL, MDL 2387.
In an effort to efficiently and effectively manage this MDL, the court decided
to conduct pretrial discovery and motions practice on an individualized basis so that
once a case is trial-ready (that is, after the court has ruled on all summary judgment
motions, among other things), it can then be promptly transferred or remanded to the
appropriate district for trial. To this end, the court originally placed this and other
cases in Coloplast Wave 3.1 Pretrial Order (“PTO”) # 123, at 13 [ECF No. 7].
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 responsibilities. PTO
# 123, for example, provides that each plaintiff in Wave 3 must submit a Plaintiff
Fact Sheet (“PFS”).2 PTO # 123, at 2. The plaintiff, however, did not comply with PTO
# 123 in that she wholly failed to submit a completed PFS, and on this basis,
defendants now seek dismissal of her 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 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
Subsequently, the court moved this and other cases into Coloplast Wave 4. Order, Aug. 1, 2017 [ECF
Similarly, PTO # 124 provides that each plaintiff in Wave 4 must submit a PFS. PTO # 124, at 2
[ECF No. 1261], In re Coloplast Corp., Pelvic Support Sys. Prods. Liab. Litig., No. 2:12-md-02387,
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 the case at bar, 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 in
the aggregate, 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. And 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 # 123, each plaintiff in Wave 3 was ordered to complete and
serve a PFS on defendants by May 20, 2017.3 PTO # 123, at 2. Although all other
deadlines for Coloplast Wave 3 cases were stayed, the PFS due date of May 20
remained in place.4 See PTO # 126, at 1 [ECF No. 8].
According to defendants, the plaintiff failed to submit a PFS within the courtordered deadline. As of the date of this Order, the plaintiff has not submitted a PFS,
making it more than 152 days late. Accordingly, pursuant to PTO # 123, defendants
now move for dismissal of the plaintiff’s case with prejudice.
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
Similarly, pursuant to PTO # 124, each plaintiff in Wave 4 was ordered to complete and serve a PFS
on defendants by May 20, 2017—the same deadline applicable to Wave 3 plaintiffs. PTO # 124, at 2.
Similarly, although all other deadlines for Coloplast Wave 4 cases were stayed, the PFS due date of
May 20 remained in place. See PTO #127, at 1 [ECF No. 1277], In re Coloplast Corp., Pelvic Support
Sys. Prods. Liab. Litig., No. 2:12-md-02387.
justified, the plaintiff 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 plaintiff has
not responded. This indicates a failing on the part of the plaintiff, who has an
obligation to provide counsel with any information needed to prosecute her 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.”). Furthermore, as set forth in PTO # 2, “[a]ll attorneys
representing parties to this litigation . . . bear the responsibility to represent their
individual client or clients.” PTO # 2, at ¶ E [ECF No. 10], In re Coloplast
Corp., Pelvic Support Sys. Prods. Liab. Litig., No. 2:12-md-02387. This includes
awareness of and good faith attempts at compliance with all PTOs and other court
orders. PTO # 12, which was jointly drafted by the leadership counsel of both parties,
expressly states that any plaintiff who fails to comply with PFS obligations may, for
good cause shown, be subject to sanctions. PTO # 12, at ¶ 2(d)5 [ECF No. 40], In re
Coloplast Corp., Pelvic Support Sys. Prods. Liab. Litig., No. 2:12-md-02387. The
plaintiff 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 plaintiff. See In re
Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867 (8th
PTO # 105 subsequently amended PTO # 12. The language in section 2(d), however, was not affected.
See PTO # 105 [ECF No. 572], In re Coloplast Corp., Pelvic Support Sys. Prods. Liab. Litig. , No. 2:12md-02387.
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, defendants are “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 the defendants have had to divert attention away from timely
plaintiffs and onto this case, the delay has unfairly impacted the progress of the
remaining plaintiffs in MDL 2387.
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. From the representations of defendants’ counsel, a
considerable number of plaintiffs have failed to supply a timely PFS. Consequently,
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 included cases).
Application of the first three factors demonstrates that this court is justified in
sanctioning the plaintiff. However, application of the fourth factor—the effectiveness
of less drastic sanctions—counsels against the relief sought by defendants. Rather
than imposing harsh sanctions at this time, the court opts for a lesser sanction and
allows the plaintiff one more chance to comply, subject to dismissal, upon motion by
the defendants, if she fails to do so. This course of action is consistent with PTO # 12,
which warned plaintiffs of the possibility of dismissal upon failure to submit a timely
PFS. See PTO # 12 ¶ 1(i).
Alternative lesser sanctions, such as the ones proposed in Rule 37(b)(2)(i)–(iv),
are simply impracticable, and therefore ineffective, in the context of an MDL
containing approximately 140 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 defendants. Therefore, considering the administrative and economic
realities of multidistrict litigation, I conclude that affording the plaintiff a final
chance to comply with discovery, subject to dismissal if she fails 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 (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”).
It is ORDERED that Defendants’ Motion to Compel and in the Alternative to
Dismiss is GRANTED in part to the extent defendants seek an order compelling
production of the PFS and DENIED in part and without prejudice as to the remaining
relief. It is further ORDERED that the plaintiff must serve her completed PFS on
defendants on or before November 17, 2017. Failure to comply with this Order may
result in dismissal upon motion by the defendants. Finally, it is ORDERED that
plaintiff’s counsel send a copy of this Order to the plaintiff via certified mail, return
receipt requested, and file a copy of the receipt.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
October 19, 2017
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