Sapp v. Boston Scientific Corporation et al

Filing 13

ORDER granting in part and denying in part 11 MOTION by Boston Scientific Corporation to Dismiss for Plaintiff's Failure to Timely Serve her Plaintiff Profile Form, as more fully set forth herein; the plaintiff has 30 business days from th e entry of this Order to pay BSC $1000 as minimal partial compensation for the reasonable expenses caused by the plaintiff's failure to comply with discovery; in the event that the plaintiff does not provide adequate or timely payment, t he court will consider ordering a show-cause hearing in Charleston, West Virginia, 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 1/20/2016. (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:

BOSTON SCIENTIFIC CORP.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2326

THIS DOCUMENT RELATES TO:
Sapp v. Boston Scientific Corp.

Civil Action No. 2:14-cv-30416
ORDER

Pending before the court is Boston Scientific Corp.’s (“BSC”) Motion to Dismiss [ECF
No. 11]. The plaintiff has responded to the motion [ECF No. 12], making it ripe for decision. For
the reasons stated below, BSC’s Motion to Dismiss [ECF No. 11] 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 over 70,000 cases currently
pending, approximately 18,000 of which are in the BSC MDL, MDL 2326. 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”) # 16, for example, ensures that Ethicon receives
the plaintiff-specific information necessary to defend the cases against it. Under PTO # 16, each
plaintiff in this MDL must submit a Plaintiff Profile Form (“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 # 16, In re: Boston Scientific Corp., Pelvic Repair System
Prods.

Liab.

Litig.,

No.

2:12-md-2326,

entered

Oct.

4,

2012,

available

at

http://www.wvsd.uscourts.gov/MDL/boston/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 # 16, and I entered it as applicable to every one of the
thousands of cases in this MDL.
Here, the plaintiff filed her complaint on December 19, 2014, and her PPF was due to BSC
by February 17, 2015. The plaintiff did not submit a PPF during this time period. Indeed, the
plaintiff did not submit a PPF until BSC filed the instant motion, making the PPF more than 330
days late. BSC asks the court to dismiss the plaintiff’s case or, alternatively, sanction the plaintiff
a reasonable monetary penalty under the terms and conditions that the court deems appropriate.
The plaintiff, while admitting that the PPF was untimely, insists that the discovery deficiency was
or has been cured and was merely due to inadvertence.
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
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.

2

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.”).
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 BSC. Applying Rule
37(b)(2)(C) ensures that the disobeying party, rather than the innocent party, bears those costs.
Accordingly, BSC’s Motion to Dismiss is DENIED in part in regards to dismissing the plaintiff’s
claim and GRANTED in part to the extent that it seeks the payment of reasonable expenses.
To bring this Motion to Dismiss, BSC expended time and money identifying Ms. Sapp as
one of the non-compliant plaintiffs; assessing the effect of her discovery violations; drafting a
motion to dismiss or for sanctions; serving the motion; and replying to the plaintiff’s brief in
opposition. Based on my understanding of the economic and administrative realities of
multidistrict litigation, I conclude that a more representative, though still minimal, valuation of
BSC’s expenses, and the proper sanction in this case, is in the amount of $1000.

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IV.

Conclusion

It is therefore ORDERED that the plaintiff has 30 business days from the entry of this
Order to pay BSC $1000 as minimal partial compensation for the reasonable expenses caused by
the plaintiff’s failure to comply with discovery.1 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 BSC’s Motion to
Dismiss [ECF No. 11] is GRANTED in part and DENIED in part. 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.
ENTER: January 20, 2016

1

The court directs BSC to communicate with plaintiffs’ leadership regarding payment instructions.

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