Buki v. Coloplast Corp.

Filing 13

ORDER Coloplast's 8 Motion to Compel and in the Alternative to Dismiss is GRANTED in part to the extent Coloplast seeks an order compelling production of the PFS and DENIED in part and without prejudice as to the remaining relief; the p laintiff must serve her completed PFS on Coloplast on or before 4/10/2017; if the plaintiff does not comply, the motion to dismiss may be granted with prejudice filed by Coloplast; Coloplast shall have through and including 3/17/2017 to file an affidavit of reasonable fees and expenses incurred in filing this Motion, as well as any supportive documentation or argument to justify the amount of fees and expenses requested; failure to timely file the affidavit and supporting documentation s hall result in a denial of fees and costs; the plaintiff shall have through and including 3/24/2017 to respond to Coloplasts submissions. The response shall include any justification that would preclude or reduce an award of expenses, or, in the al ternative, shall include a statement identifying the attorney and/or party whose conduct necessitated Coloplast's Motion; failure to file a response shall be deemed an admission of or agreement with the representations and arguments of Colopl ast; Coloplast shall have through and including 3/29/2017 to file a reply memorandum; and at the conclusion of the period allowed for briefing, the court will rule on any request for reasonable fees and costs. Signed by Judge Joseph R. Goodwin on 3/10/2017. (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:

COLOPLAST CORP.
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2387

THIS DOCUMENT RELATES TO:

Eva Buki v. Coloplast Corp.

Civil Action No. 2:15-cv-03504
ORDER

Pending before the court is Coloplast Corp.’s (“Coloplast”) Motion to Compel
and in the Alternative to Dismiss [ECF No. 8]. Briefly, the plaintiff in this case failed
to serve a Plaintiff Fact Sheet (“PFS”), and Coloplast seeks an order compelling
production of a PFS within five days, dismissing the case with prejudice if the plaintiff
fails to comply; dismissing the case with prejudice without an opportunity to comply;
or an award of $100 per day from the date of the PFS deadline until plaintiff serves
a PFS. The plaintiff has responded [ECF No. 9], and this matter is now ripe for my
review.
I.

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)).
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 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.”).

2

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
‘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.”).
II.

Discussion
Pursuant to PTO # 107, the Coloplast Wave 2 plaintiffs, including Ms. Buki,

were ordered to complete and serve a PFS on Coloplast by September 19, 2016. Id. at
2. Although all other deadlines for Coloplast Wave 2 ultimately were stayed pursuant
to PTO # 110, the September 19 PFS due date remained in place. [ECF No. 6].
According to Coloplast, the plaintiff failed to submit a PFS within the courtordered deadline. The day after the PFS deadline, plaintiff’s counsel moved to
withdraw as counsel [ECF No. 7], which I denied on December 1, 2016. [ECF No. 12].
In response to the instant motion, plaintiff’s counsel responded that they were unable
to communicate with the plaintiff and still wished to withdraw as counsel.

3

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 discovery
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 Ms. Buki. However, counsel’s inability to contact the
plaintiff is not an excuse, and instead indicates a failing on the part of the plaintiff.
A plaintiff has an obligation to provide counsel with any information needed to
prosecute her case, including up-to-date contact information. 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 ¶ E, In re: Coloplast Corp., Pelvic Repair System Prods. Liab.

Litig.,

No.

2:12-md-002387,

entered

Sept.

21,

2012,

available

at

http://www.wvsd.uscourts.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 any plaintiff who fails to comply with PFS obligations, may for good
cause shown, be subject to sanctions. PTO # 12 ¶ 2(d)1. The plaintiff nevertheless
failed to comply. Although these failures do not appear to be callous, the fact that

1

Pretrial Order # 105 subsequently amended PTO # 12; however the language in section 2(d) was not affected. See
PTO # 105 [ECF No. 572].

4

they were blatant—and in full knowledge of the court’s orders and discovery
deadlines—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 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 supports an
order for sanctions. Without a PFS, Coloplast 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 Coloplast has had to divert its attention away from timely
plaintiffs and onto Ms. Buki, 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. A number of plaintiffs have failed to supply Coloplast
with a timely PFS. In fact, of the motions filed by Coloplast to date, the majority of
these plaintiffs, including Ms. Buki, have failed to supply a PFS 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

5

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, the final factor, the effectiveness of lesser
sanctions must be considered. Rather than imposing harsh monetary sanctions or
dismissal at this time, the court opts for a lesser sanction and allows Ms. Buki one
more chance to comply with PTO # 107 subject to dismissal with prejudice, upon
motion by the defendant, if she fails to do so. This course of action is consistent with
PTO # 12, which warned plaintiffs of the sanctions. See PTO # 12 ¶ 1.
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 500 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 Coloplast. Therefore, considering the administrative and economic
realities of multidistrict litigation, I conclude that affording Ms. Buki a final chance
to comply with discovery, subject to dismissal with prejudice 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

6

be construed, administered, and employed by the court and the parties to secure the
just, speedy, and inexpensive determination of every action and proceeding”).
III.

Conclusion
It is ORDERED that Coloplast’s Motion to Compel and in the Alternative to

Dismiss [ECF No. 8] is GRANTED in part to the extent Coloplast seeks an order
compelling production of the PFS and DENIED in part and without prejudice as to
the remaining relief. It is further ORDERED that the plaintiff must serve her
completed PFS on Coloplast on or before April 10, 2017. If the plaintiff does not
comply, I may grant any motion to dismiss with prejudice filed by Coloplast.
I FIND, pursuant to Rule 37(b)(2)(C), that Ms. Buki’s failure to serve her PFS
not substantially justified and no other circumstances make an award of expenses
unjust. Accordingly, it is ORDERED that Coloplast shall have through and including
March 17, 2017 to file an affidavit of reasonable fees and expenses incurred in filing
this Motion, as well as any supportive documentation or argument to justify the
amount of fees and expenses requested. See Robinson v. Equifax Information

Services, LLC, 560 F.3d 235, 243–44 (4th Cir. 2009). Failure to timely file the affidavit
and supporting documentation shall result in a denial of fees and costs. The plaintiff
shall have through and including March 24, 2017 to respond to Coloplast’s
submissions. The response shall include any justification that would preclude or
reduce an award of expenses, or, in the alternative, shall include a statement
identifying the attorney and/or party whose conduct necessitated Coloplast’s Motion.
Failure to file a response shall be deemed an admission of or agreement with the

7

representations and arguments of Coloplast. Coloplast shall have through and
including March 29, 2017 to file a reply memorandum. At the conclusion of the period
allowed for briefing, the court will rule on any request for reasonable fees and costs.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.

ENTER:

8

March 10, 2017