Curiel v. Coloplast Corp.

Filing 29

MEMORANDUM OPINION & ORDER denying 21 MOTION by Coloplast Corp. to Dismiss, and granting 25 MOTION by Kathy Curiel for Leave to File Surreply, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 11/9/2017. (cc: counsel of record; any unrepresented party) (brn)

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:

Kathy Curiel v. Coloplast Corp.

Civil Action No. 2:15-cv-04242

MEMORANDUM OPINION & ORDER
Pending before the court is Coloplast Corp.’s (“Coloplast”) Motion to Dismiss
[ECF No. 21]. The plaintiff has responded to the motion [ECF No. 23], and Coloplast
has replied [ECF No. 24], making it ripe for decision. Also pending before the court is
the plaintiff’s Motion for Leave to File Surreply [ECF No. 25]. For the reasons stated
below, Coloplast’s Motion [ECF No. 21] is DENIED and the plaintiff’s Motion [ECF
No. 25] is GRANTED.
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
approximately 42,000 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. 13].
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. PTO
# 124, for example, provides that each plaintiff in Wave 4 must submit a Plaintiff
Fact Sheet (“PFS”). See id. at 1. Coloplast concedes that the plaintiff “served her PFS
in accordance with the prescribed deadline.” Def.’s Mot. 3. However, Coloplast
contends that “the PFS was deficient in its responses” and that the plaintiff failed to
cure those deficiencies. Id. On this basis, Coloplast now seeks an order dismissing
this case with prejudice.
II.

Discussion
PTOs # 12 and 105 set forth specific requirements for completing and serving

the PFS. See generally PTO # 12 [ECF No. 40] and PTO # 105 [ECF No. 572], In re

Coloplast Corp., Pelvic Support Sys. Prods. Liab. Litig., No. 2:12-md-02387. PTO # 12
establishes how defendants must proceed when they receive an incomplete PFS
within the court-ordered deadline:
If defendants receive a PFS in the allotted time but the PFS
is not substantially complete, defendants’ counsel shall
send a deficiency letter within 10 days of receipt of a PFS,
as applicable by e-mail and U.S. mail to the Plaintiffs’ CoLead Counsel and the plaintiffs’ individual representative
counsel, identifying the purported deficiencies. The
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plaintiff shall have twenty (20) days from receipt of that
letter to serve a PFS that is substantially complete in all
respects. This letter shall include sufficient detail for the
parties to meet and confer regarding the alleged
deficiencies.
PTO # 12, at ¶ 2c.
In this case, the plaintiff served her PFS on Coloplast within the May 20
deadline. On May 30, 2017, Coloplast notified plaintiff’s counsel via e-mail of the
purported deficiencies regarding the PFS. Def.’s Mot. Ex. B [ECF No. 21-2].
In response to Coloplast’s Motion to Dismiss, the plaintiff states that on June
15, 2017, she served on Coloplast an amended PFS addressing the identified
deficiencies. Pl.’s Resp. 1. In its reply, Coloplast states that it “has never seen this
alleged Amended PFS” despite conducting “a diligent search.” Def.’s Reply 1. In the
plaintiff’s surreply, she states that she “emailed an Amended PFS on June 15, 2017
to Defendant at the same email addresses where Defendant acknowledged receiving
the original PFS.” Pl.’s Surreply 2 [ECF No. 25-1]. Attached to the plaintiff’s surreply
are two emails, both sent from plaintiff’s counsel to Coloplast’s counsel using the
same respective email addresses. The first email, dated May 19, 2017, includes the
plaintiff’s PFS as a downloadable attachment. Pl.’s Surreply, Ex. A-1 [ECF No. 25-2].
The second email, dated June 15, 2017, includes the plaintiff’s amended PFS as a
downloadable attachment. Pl.’s Surreply, Ex. A-2 [ECF No. 25-3].
The court finds that the plaintiff has provided the court with documentation to
support the claim that she addressed the deficiencies in the PFS identified by

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Coloplast as required by PTO # 12. Accordingly, dismissal of the plaintiff’s case with
prejudiced is unwarranted.
III.

Conclusion
It is ORDERED that Coloplast’s Motion to Dismiss [ECF No. 21] is DENIED.

It is further ORDERED that Plaintiff’s Motion for Leave to File Surreply [ECF No.
25] is GRANTED.
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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November 9, 2017