Herrera v. Coloplast Corp.

Filing 22

MEMORANDUM OPINION & ORDER The 19 MOTION by Coloplast Corp. to Dismiss is DENIED; the 21 CROSS-MOTION by Daniel C. Burke for an Order to be Relieved as Counsel is DENIED; counsel for plaintiff must meet and confer with counsel for defendant on o r before 1/2/2018 to engage in good faith discussions about the possibility of settlement; failure to comply with this Order may result in dismissal upon motion by the defendant; and 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 12/1/2017. (cc: counsel of record; any unrepresented party) (mek)

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:

Barbara Herrera v. Coloplast Corp.

Civil Action No. 2:15-cv-01733

MEMORANDUM OPINION & ORDER
Pending before the court is Defendant’s Motion to Dismiss [ECF No. 19] filed
by Coloplast Corp. (“Coloplast”), to which the plaintiff has responded [ECF No. 21].
Also pending is the plaintiff’s Cross-Motion for an Order to be Relieved as Counsel
[ECF No. 21]. For the reasons stated below, both motions are 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
nearly 30,000 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 10 [ECF No. 8].
Managing multidistrict litigation requires the court to streamline certain
litigation procedures in order to improve efficiency for the parties and the court. PTO
# 134, for example, required plaintiff’s counsel to meet and confer with counsel for
defendant on or before August 9, 2017 to engage in good faith discussions about the
possibility of settlement [ECF No. 17]. Plaintiff’s counsel, however, did not comply
with PTO # 134 in that they wholly failed to meet and confer with counsel for
defendant. On this basis, defendant now seeks dismissal of the plaintiff’s 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)).

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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 # 134, counsel for all plaintiffs identified in the exhibit

attached thereto were directed to meet and confer with counsel for defendant on or
before August 9, 2017 to engage in good faith discussions about the possibility of
settlement. PTO # 134, at 1. This case was identified on Exhibit A to PTO # 134. Id.
at 3.
According to defendant, plaintiff’s counsel did not meet and confer with
defendant’s counsel because plaintiff’s counsel was unable to contact their client.
Therefore, no meaningful discussion about the possibility of settlement could take
place. Accordingly, pursuant to PTO # 134, defendant now moves for dismissal of the
plaintiff’s case with prejudice.
In response, plaintiff’s counsel state that they made numerous attempts to
contact the plaintiff prior to the August 9 th meet-and-confer deadline, all of which
went unanswered. Plaintiff’s counsel last spoke with the plaintiff on August 7, 2017,
but the plaintiff ended the phone call abruptly without a resolution as to how to
proceed with her case. Numerous attempts to contact the plaintiff since August 7
have all gone unanswered. Plaintiff’s counsel believes that an irrevocable breach has
developed between themselves and the plaintiff. Therefore, plaintiff’s counsel request

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leave to withdraw as counsel, and allow the plaintiff a reasonable opportunity to find
other counsel or proceed pro se.
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 plaintiff should be afforded one more chance to comply with PTO # 134
before further sanctions are imposed.
The first factor, bad faith, is difficult to ascertain, given that plaintiff’s counsel
has not had recent contact with their client. This indicates a failing on the part of the
plaintiff, who have an obligation to provide counsel with any information needed to
prosecute their 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. 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 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
Cir. 2007) (“While not contumacious, perhaps, this is a blatant disregard for the

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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. Defendant did not learn of plaintiff’s counsel’s inability to contact
their client until August 8, 2017—the day before the meet-and-confer deadline. Thus,
defendant likely expended substantial time and resources prior to the deadline
attempting to set up the court-ordered meeting. Furthermore, because the defendant
has had to divert attention away from responsive 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. 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 defendant. 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

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the defendant, if she fails to do so. This course of action is consistent with PTO # 134,
which warned plaintiffs of the possibility of dismissal upon failure to comply with the
procedures set forth therein. See PTO # 134 ¶ 6.
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 defendant. Therefore, considering the administrative and economic
realities of multidistrict litigation, I conclude that affording the plaintiff a final
chance to comply, 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”). Furthermore, in
order to aid the plaintiff in complying with this Order, plaintiff’s counsel’s request to
withdraw is DENIED.
IV.

Conclusion
It is ORDERED that Defendant’s Motion to Dismiss [ECF No. 19] is DENIED.

It is further ORDERED that plaintiff’s Cross-Motion for an Order to Be Relieved as
Counsel [ECF No. 21] is DENIED. It is further ORDERED that counsel for plaintiff
must meet and confer with counsel for defendant on or before January 2, 2018 to

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engage in good faith discussions about the possibility of settlement. Failure to comply
with this Order may result in dismissal upon motion by the defendant. 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:

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December 1, 2017