Mast v. Cook Incorporated et al
ORDER It is ORDERED that the plaintiff has 30 business days from the entry of this Order to pay Cook $500 as minimal partial compensation for the reasonable expenses caused by the plaintiff's failure to comply with discovery. In the eve nt 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 Cook's 6 Motion is GRANTED in p art 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. Signed by Judge Joseph R. Goodwin on 7/28/2015. (cc: counsel of record; any unrepresented party) (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
COOK MEDICAL, INC.
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
THIS DOCUMENT RELATES TO:
Robbyn Mast v. Cook Medical, Inc., et al.
Civil Action No. 2:15-cv-02137
Pending before the court is Cook, Inc., Cook Biotech, Inc., and Cook Medical, Inc. n/k/a
Cook Medical LLC’s (collectively “Cook”) Motion to Dismiss or, in the Alternative, for Monetary
Sanctions [Docket 6]. For the reasons stated below, Cook’s Motion [Docket 6] is GRANTED in
part and DENIED in part.
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 (and in the Cook MDL,
nonmesh) to treat stress urinary incontinence and pelvic organ prolapse. In the seven MDLs, there
are nearly 70,000 cases currently pending, approximately 350 of which are in the Cook Medical,
Inc. MDL, MDL 2440. 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”) #
8, for example, ensures that Cook receives the plaintiff-specific information necessary to defend
the cases against it. Under PTO # 8, 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 Pretrial Order
#8 (“PTO #8” or the “Order”), In re: Cook Medical, Inc. Pelvic Repair System Products Liability
http://www.wvsd.uscourts.gov/MDL/2440/pdfs/PTO_8.pdf). Each plaintiff must submit a PPF
within 60 days of filing a Short Form Complaint. (Id.). Failure to do so subjects the plaintiff “to
sanctions, to be determined by the court, upon motion of the defendants.” (Id.). The parties jointly
drafted the requirements for PTO # 8, and I entered it as applicable to every one of the hundreds of
cases in this MDL.
Here, the plaintiff filed her complaint on February 24, 2015, and her PPF was due to Cook
by April 25, 2015. The plaintiff did not submit a PPF during this time period. Indeed, the plaintiff
did not submit a PPF until after Cook filed the instant motion, making the PPF a total of 61 days
late. Cook asks the court to dismiss the plaintiff’s case with prejudice. In the alternative, Cook asks
that the court impose monetary sanctions in the amount of $500, plus $100 per day past the date of
the Order during which Ms. Mast fails to comply. The plaintiff, while admitting that the PPF was
untimely, insists that because the discovery deficiency has been cured, a sanction is inappropriate.
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.
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.”).
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 Cook. Applying
Rule 37(b)(2)(C) ensures that the disobeying party, rather than the innocent party, bears those
costs. Accordingly, Cook’s Motion is GRANTED to the extent that it seeks $500, the payment of
reasonable expenses. This amount takes into consideration Cook’s expended time and money
identifying Ms. Mast as one of the non-compliant plaintiffs; assessing the effect of her discovery
violations; drafting the motion; and serving the motion. 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 Cook seeks payment of $100 per day for each day
the PPF is late according to the terms of this Order, its Motion is DENIED as moot. Furthermore,
to the extent Cook asks for dismissal with prejudice, the Motion is DENIED. Such a sanction is
too harsh given the facts before the court. 1
It is therefore ORDERED that the plaintiff has 30 business days from the entry of this
Order to pay Cook $500 as minimal partial compensation for the reasonable expenses caused by
the plaintiff’s failure to comply with discovery. 2 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 Cook’s Motion
[Docket 6] 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
July 28, 2015
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.
The court directs Cook to communicate with plaintiffs’ leadership regarding payment instructions.
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