Camacho v. Ethicon, Inc. et al
Filing
11
AMENDED ORDER Amending the 9 Order and directing the Clerk REMOVE the Plaintiff Profile Form [ECF No. 6-6], as its filing offends S.D. W. Va. L.R. Civ. P. 5.2.1. Signed by Judge Joseph R. Goodwin on 10/14/2015. (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:
ETHICON, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2327
THIS DOCUMENT RELATES TO:
Mary Camacho v. Ethicon, Inc., et al.
Civil Action No. 2:14-cv-28417
AMENDED ORDER
Pursuant to Rule 60 of the Federal Rules of Civil Procedure, the court may correct clerical
mistakes or mistakes arising from oversight or omission whenever one is found in an order. The
court may do so on motion or on its own, with or without notice. Upon review of the filings in this
case, the court recognizes that the plaintiff had, in fact, served her Plaintiff Profile Form (“PPF”)
on the defendants prior to the court’s Order of August 28, 2015—wherein the court took action
under the belief that the plaintiff had not served the PPF. Because the Order was issued in error,
the court VACATES the Order of August 28, 2015 [ECF No. 8].
The court now reconsiders Ethicon, Inc., and Johnson & Johnson’s (collectively “Ethicon”)
Motion for Sanctions [ECF No. 5]. For the reasons stated below, Ethicon’s Motion for Sanctions
[ECF No. 5] is GRANTED in part and DENIED in part.
I.
Background
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 70,000 cases
currently pending, approximately 27,000 of which are in the Ethicon, Inc. MDL, MDL 2327.
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. Pretrial Order (“PTO”) # 17, for example, ensures
that Ethicon receives the plaintiff-specific information necessary to defend the cases against it.
Under PTO # 17, each plaintiff in this MDL must submit a 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 PTO # 17, In re: Ethicon, Inc., Pelvic Repair System Prods. Liab.
Litig.,
No.
2:12-md-2327,
entered
Oct.
4,
2012,
available
at
http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html). Each plaintiff must submit a PPF
within 60 days of filing a Short Form Complaint. (Id. ¶ 1b). Failure to do so subjects the plaintiff
“to sanctions, to be determined by the court, upon motion of the defendants.” (Id. ¶ 1i). The parties
jointly drafted the requirements for PTO # 17, and I entered it as applicable to every one of the
thousands of cases in this MDL.
Here, the plaintiff filed her complaint on November 17, 2014, and her PPF was due to
Ethicon by January 16, 2015. The plaintiff did not submit a PPF during this time period. Indeed,
the plaintiff did not submit a PPF until Ethicon filed the instant motion. Ethicon asks the court to
sanction the plaintiff by ordering her or her counsel to pay a reasonable monetary penalty and/or
by dismissing the plaintiff’s case. The plaintiff, while admitting that the PPF was untimely, insists
that a monetary sanction is inappropriate because Ethicon failed to accommodate a reasonable
request to submit the PPF late.
II.
Legal Standard
Federal Rule of Civil Procedure 37(b)(2) provides that a court may issue “just orders” when
a party fails to provide or permit discovery. Fed. R. Civ. P. 37(b)(2)(A). In the MDL world, this
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authority has particular significance. An MDL judge bears the “enormous” task of “mov[ing]
thousands of cases toward resolution on the merits while at the same time respecting their
individuality,” and to carry out this task in a smooth and efficient manner, the judge must establish
and, more importantly, enforce rules for discovery. In re Phenylpropanolamine Prods. Liab. Litig.,
460 F.3d 1217, 1231 (9th Cir. 2006). Rule 37(b)(2) supplies the tool for this enforcement, allowing
a judge to impose sanctions when a party fails to comply with the court’s discovery orders. See id.
at 1232 (“[A] willingness to resort to sanctions, sua sponte if necessary, may ensure compliance
with the [discovery] management program.” (internal citation omitted)); 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.”).1
III.
Discussion
The circumstances of this case lead me to impose the sanction provided in Rule
37(b)(2)(C), which requires the disobeying party to pay “the reasonable expenses, including
attorney’s fees, caused by the [discovery] failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). The plaintiff
has not provided substantial justification for her failure to timely submit to discovery. Furthermore,
there are no circumstances that make this sanction unjust. Although the discovery violation has
since been cured, it nevertheless resulted in litigation expenses for Ethicon. Applying Rule
37(b)(2)(C) ensures that the disobeying party, rather than the innocent party, bears those costs.
The plaintiff’s contention that the court must apply the Wilson factors before ordering monetary sanctions is
inaccurate. The Fourth Circuit Court of Appeals has directed courts to consider the Wilson factors in the case of
“extreme sanction[s],” such as dismissal or judgment by default, where the “district court’s desire to enforce its
discovery orders is confronted head-on by the party’s rights to a trial by jury and a fair day in court.” Mut. Fed. Sav.
& Loan Ass’n v. Richards & Associates, 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)). The minor sanction ultimately ordered in this case, partial compensation
of the expenses caused by the plaintiff’s discovery violation, does not raise these concerns. Therefore, I do not find it
necessary to review the Wilson factors.
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3
Accordingly, Ethicon’s Motion for Sanctions is GRANTED to the extent that it seeks the payment
of reasonable expenses.2 I find that $500 is a minimally representative valuation of Ethicon’s
expenses. This number accounts for the time and money Ethicon spent identifying Ms. Camacho
as one of the non-compliant plaintiffs; assessing the effect of her discovery violations; drafting a
motion for sanctions; serving the motion; and replying to the plaintiff’s brief in opposition. All
knowledgeable MDL counsel would consider these efforts, which could have been avoided had
the plaintiff followed the court’s order, to be worth $500 at the least.
To the extent that Ethicon seeks dismissal of the plaintiff’s case, its motion is DENIED.
IV.
Conclusion
It is therefore ORDERED that the plaintiff has 30 business days from the entry of this
Order to pay Ethicon $500 as minimal partial compensation for the reasonable expenses caused by
the plaintiff’s failure to comply with discovery.3 In the event that the plaintiff does not provide
adequate or timely payment, the court will consider ordering a show cause hearing in Charleston,
West Virginia, upon motion by the defendants. It is further ORDERED that Ethicon’s Motion for
Sanctions [ECF No. 5] is GRANTED in part and DENIED in part. It is ORDERED that
2
At this time, there are many motions pending before the court similar to the one at bar, and from the representations
of Ethicon’s counsel, this number could reach more than 800. In response, the plaintiffs’ lead counsel filed an omnibus
motion, seeking clarification and amendment of PTO # 17. The plaintiffs argued, among other things, that because
Ethicon did not follow the procedures set forth in Local Rule 37.1 before moving for sanctions—specifically, Ethicon
did not confer with plaintiffs’ counsel about discovery deficiencies—the court should strike Ethicon’s motions. I
denied the plaintiffs’ omnibus motion by Order entered on June 2, 2015, (see PTO # 180, No. 2:12-md-02327 [Docket
1582]), but some plaintiffs have also raised Local Rule 37.1 in their individual briefing. Therefore, I feel compelled
to explain my reasons for rejecting this argument. As an initial matter, strict enforcement of Local Rule 37.1 is not
feasible or even desirable in an MDL containing 25,000 plaintiffs represented by hundreds of attorneys from all over
the country. Conferring on each discovery violation, no matter how small, would be time-consuming, impractical,
and, in most cases, ineffective. Furthermore, the parties negotiated and agreed to the discovery procedure outlined in
PTO # 17, which implements rules intended to accommodate the complexity and capacity of multidistrict litigation.
Though PTO # 17 imposes a duty to confer in some situations, (see PTO # 17 ¶ 1h (requiring the parties to meet and
confer when the PPF is timely but incomplete)), the parties chose not to extend the duty to cases where the PPF is late.
On October 4, 2012, the court approved this procedure and entered it as applicable to each case in MDL 2327, and I
continue to apply it here.
3
The court directs Ethicon to communicate with plaintiffs’ leadership regarding payment instructions.
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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. Finally, it is ORDERED that the Clerk REMOVE the
Plaintiff Profile Form [ECF No. 6-6], as its filing offends S.D. W. Va. L.R. Civ. P. 5.2.1.
Because the Order was issued in error, the court VACATES the Order of August 28, 2015 [ECF
No. 8].
The court further DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:
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October 14, 2015
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