Bailey et al v. Mentor Worldwide LLC et al

Filing 16

MEMORANDUM OPINION & ORDER Defendants' 8 Motion to Dismiss is DENIED; the plaintiffs must serve their completed PFS on defendants on or before 11/17/2017; failure to comply with this Order may result in dismissal with prejudice upon motion by the defendants; plaintiffs' counsel is directed to send a copy of this Order to the plaintiffs 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
CHARLESTON DIVISION
IN RE:

COLOPLAST CORP.
PELVIC SUPPORT SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2387

THIS DOCUMENT RELATES TO:

Tina Bailey, et al. v. Mentor Worldwide LLC, et al.

Civil Action No. 2:14-cv-28911

MEMORANDUM OPINION & ORDER
Pending before the court is Defendants’ Motion to Dismiss [ECF No. 8] filed by
Coloplast Corp. (“Coloplast”) and Mentor Worldwide LLC (“Mentor”). The plaintiff
has responded to the motion [ECF No. 11], and Coloplast has replied [ECF No. 12],
making it ripe for decision. For the reasons stated below, defendants’ Motion is
DENIED.
I.

Background
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 placed this and other cases in
Coloplast Wave 4. Pretrial Order (“PTO”) # 124, at 9 [ECF No. 5].
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 # 124, for example, provides that each plaintiff in Wave 4 must submit
a Plaintiff Fact Sheet (“PFS”). See id. at 1. The plaintiffs, however, did not comply
with PTO # 124 in that they wholly failed to submit a PFS, and on this basis,
defendants now seek an order dismissing this case with prejudice.
II.

Legal Standard
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
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)).

2

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

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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.”).
III.

Discussion
Pursuant to PTO # 124, each plaintiff in Wave 4 was ordered to complete and

serve a PFS on defendants by May 20, 2017. PTO # 124, at 1 [ECF No. 5]. Although
all other deadlines for Coloplast Wave 4 were stayed, the PFS due date of May 20
remained in place. See PTO # 127, at 1 [ECF No. 6].
According to defendants, the plaintiffs failed to submit a PFS within the courtordered deadline. As of the date of this Order, the plaintiffs have not submitted a
PFS, making it more than 152 days late. Accordingly, pursuant to PTO # 124,
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
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’
counsel has not had recent contact with the plaintiffs. However, counsel’s inability
to contact the plaintiffs is not an excuse and instead indicates a failing on the part of
the plaintiffs, who have an obligation to provide counsel with any information needed
to prosecute their case, including up-to-date contact information. See Link v. Wabash

4

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, http://www.wvsd.uscourt
s.gov/MDL/2387/orders.html. This includes awareness of and good faith attempts at
compliance with all PTOs and other court orders. Pretrial Order # 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)1 [ECF No. 40], In re Coloplast Corp., Pelvic

Support Sys. Prods. Liab. Litig., No. 2:12-md-02387. 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 deadlines and procedure
imposed by the court, [and t]herefore, we conclude that the [plaintiffs] did not act in
good faith.”).

Pretrial Order # 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. 2:12-md-02387.
1

5

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 its 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 Coloplast with a timely and
complete 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 plaintiffs. However, application of the fourth factor—the

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effectiveness of less drastic sanctions—counsels against the relief sought by the
defendants. 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 # 124,
subject to dismissal, upon motion by the defendants, if they fail to do so. This course
of action is consistent with PTO # 12, which warned plaintiff 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”).

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IV.

Conclusion
It is ORDERED that Defendants’ Motion to Dismiss is DENIED. It is further

ORDERED that the plaintiffs must serve their completed PFS on defendants on or
before November 17, 2017. Failure to comply with this Order may result in dismissal
with prejudice upon motion by the defendants. Finally, it is ORDERED that plaintiffs’
counsel send a copy of this Order to the plaintiffs 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.
ENTER:

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October 19, 2017