Harms et al v. Ethicon, Inc. et al
Filing
7
MEMORANDUM OPINION & ORDER (Defendants' Motion for Sanctions) denying 5 MOTION by Ethicon, Inc., Johnson & Johnson for Sanctions for Failure to Timely Serve Plaintiff Profile Form, as more fully set forth herein; the plaintiffs have 30 busines s days from the entry of this Order to submit to Ethicon a completed PPF; failure to comply with this Order will result in dismissal with prejudice upon motion by the defendants; plaintiffs' 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 3/30/2016. (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:
ETHICON, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2327
THIS DOCUMENT RELATES TO:
Harms, et al. v. Ethicon, Inc., et al.
Civil Action No. 2:15-cv-01356
MEMORANDUM OPINION & ORDER
(Defendants’ Motion for Sanctions)
Pending before the court is Ethicon, Inc. and Johnson & Johnson’s (collectively
“Ethicon”) Motion for Sanctions. [ECF No. 5]. The plaintiffs responded to the motion
[ECF No. 6], making the motion ripe for decision. For the reasons stated below,
Ethicon’s Motion for Sanctions [ECF No. 5] is DENIED.
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 75,000 cases currently pending, over 30,000 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, provides that
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 # 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).
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. The instant plaintiffs
did not comply with PTO # 17 in that they failed to submit a completed PPF, and on
this basis, Ethicon now moves for reasonable monetary sanctions, dismissal of the
plaintiffs’ case, and/or another sanction deemed appropriate by the court.
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, each 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 and strictly adhere to discovery rules, to ensure
that pretrial litigation flows smoothly and efficiently. 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
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‘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 # 17, each plaintiff is required to submit a completed PPF
within 60 days of filing a Short Form Complaint. (PTO # 17 ¶ 1b). The purpose of the
PPF, as was the case in In re Phenylpropanolamine, is “to give each defendant the
specific information necessary to defend the case against it . . . [and] 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 # 17 provided that “[a]ny plaintiff who fails to
comply with the PPF obligations under this Order may, for good cause shown, be
subject to sanctions, to be determined by the court, upon motion of the defendants.”
(PTO # 17 ¶ 1i).
Here, the plaintiffs filed their complaint on February 2, 2015, and her PPF was
due to Ethicon by April 3, 2015. As of the date of this Order, the plaintiff has not
submitted a PPF, making it 362 days late. Accordingly, pursuant to PTO # 17, Ethicon
seeks remedy from the court for this discovery failure in the form of monetary
sanctions or dismissal. 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.
4
The first factor under Wilson, bad faith, is difficult to ascertain, given that
plaintiffs’ counsel claims that failure to file a PPF was inadvertent. However,
counsel’s inadvertence is not an excuse. As set forth in PTO # 4, “[a]ll attorneys
representing parties to this litigation . . . bear the responsibility to represent their
individual client or clients.” (PTO # 4 ¶ C, In re: Ethicon Pelvic Repair System Prods.
Liab.
Litig.,
No.
2:12-md-002327,
entered
Apr.
17,
2012,
available
at
http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html). This includes awareness of
and good faith attempts at compliance with all PTOs and other court orders. PTO
# 17—which was jointly drafted by the leadership counsel of both parties—expressly
states that failure to timely submit a PPF could result in sanctions. The plaintiffs
nevertheless failed to comply. Although these failures do not appear to be callous, the
fact that they were 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 PPF, Ethicon 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 Ethicon has had to divert its attention away from timely
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plaintiffs and onto the instant plaintiffs, the delay has unfairly impacted the progress
of the remaining plaintiffs in MDL 2327.
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 Ethicon’s counsel, a
considerable number of plaintiffs have failed to supply Ethicon with a timely PPF. In
fact, of the motions filed by Ethicon to date, the majority of these plaintiffs, including
the instant plaintiffs, have failed to supply a PPF at all. 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
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 # 17
subject to dismissal with prejudice, upon motion by the defendants, if they fail to do
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so. This course of action is consistent with PTO # 17, which warned plaintiffs of the
possibility of dismissal upon failure to submit a timely PPF. (See PTO # 17 ¶ 1g (“If
a plaintiff does not submit a PPF within the time specified in this Order, defendants
may move immediately to dismiss that plaintiff’s case without first resorting to []
deficiency cure procedures.”)).
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 over 30,000 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 Ethicon.
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 (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”).
IV.
Conclusion
It is ORDERED that Ethicon’s Motion for Sanctions [ECF No. 5] is DENIED.
It is further ORDERED that the plaintiffs have 30 business days from the entry of
this Order to submit to Ethicon a completed PPF. Failure to comply with this Order
will result in dismissal with prejudice upon motion by the defendants. Finally, it is
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ORDERED that plaintiffs’ 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:
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March 30, 2016
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