Crable-Browning v. Ethicon, Inc. et al

Filing 14

MEMORANDUM OPINION AND ORDER denying 10 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss With Prejudice re: 1 Complaint, as more fully set forth herein; the plaintiff has 30 business days from the entry of this Order to pay Ethicon $ ;1000 as minimal partial compensation for the reasonable expenses caused by the plaintiff's failure to comply with discovery; 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; 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 2/10/2016. (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:

ETHICON, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2327

THIS DOCUMENT RELATES TO:
Crable-Browning v. Ethicon, Inc., et al.

Civil Action No. 2:15-cv-05267

MEMORANDUM OPINION AND ORDER
Pending before the court is a Motion to Dismiss with Prejudice filed by Ethicon, Inc., and
Johnson & Johnson (collectively “Ethicon”). [ECF No. 10]. Plaintiff has responded, Ethicon has
replied, and I have considered the parties’ filings. For the reasons stated below, Ethicon’s Motion
to Dismiss with Prejudice is DENIED.
I.

Background
Ethicon’s Motion arises from this court’s Order [ECF No. 9], entered on October 13, 2015,

denying Ethicon’s Motion for Sanctions, including monetary penalties, dismissal, and any other
sanction deemed appropriate by the court, for failure to file a Plaintiff Profile Form (“PPF”) in
compliance with Pretrial Order # 17. In reaching this decision, I relied on Wilson v. Volkswagen
of America, Inc., 561 F.2d 494 (4th Cir. 1977), in which the Fourth Circuit identified four factors
that a court must consider when reviewing a motion to dismiss on the basis of noncompliance with
discovery. (See Order [ECF No. 9], at 4–6 (applying the Wilson factors to Ms. Crable-Browning’s
case)).1 Concluding that the first three factors weighed in favor of sanctions as requested by

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The Wilson factors are as follows:
(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

Ethicon, I nevertheless declined to award the requested sanction of $100 for each day the plaintiff's
PPF was late because it would offend the court’s duty under Wilson’s fourth factor, which is to
consider the effectiveness of lesser sanctions. In recognition of this duty, I gave the plaintiff “a
final chance to comply with discovery.” (Id. at 6). I afforded her 30 business days from the entry
of the Order to submit to Ethicon a completed PPF, with the caveat that a failure to do so “will
result in dismissal with prejudice upon motion by the defendant.” (Id. at 7).
Both parties agree that 30 business days from the initial order would be Wednesday,
November 25, 2015. [ECF Nos. 12 and 13]. The parties do, however, dispute the deadline provided
in the court’s order. The plaintiff asserts the final deadline for the plaintiff to file her PPF was
Wednesday, December 2, 2015 because Federal Rule of Civil Procedure 6(d) applies, affording
her three additional business days to comply. ([ECF No. 12], at 3-4). The plaintiff contends that
the three additional days should be counted in business days because the court ordered 30-day
deadline was counted in business days and because the rule uses the term “days” rather than
“calendar days.” (Id.). The defendants argue that the three additional days include intermediate
Saturdays, Sundays, and holidays, so the final day for compliance was November 30, 2015. ([ECF
No. 13], at 2). As the plaintiff provided her PPF after November 30, 2015, the defendants argues
that the PPF was late. (Id.) The court agrees with the defendants’ interpretation.
II.

Legal Standard
Federal Rule of Civil Procedure 6(a)(1) explains that when a period is stated in days every

day should count, “including intermediate Saturdays, Sundays, and legal holidays” and this rule

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, 561 F.2d at
503–06).

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applies to “any statute that does not specify a method of computing time.” As Rule 6 clearly states
which days to count, the court finds any argument that the three additional days provided in Rule
6(d) includes only business days is without merit. Federal Rule of Civil Procedure 6(a)(1)(c) does
state that if the last day is a Saturday, Sunday or legal holiday, “the period continues to run until
the end of the next day that is not a Saturday, Sunday, or legal holiday.” Since the third day fell on
the weekend, the plaintiff had until the end of day Monday, November 30, 2015 to file the PPF.
Thus, by filing the form on Tuesday, December 1, 2015, one day late, the plaintiff missed a second
deadline related to a court order to provide a PPF.
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 is particularly significant. 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.”).
III.

Discussion
The first three of the previously mentioned Wilson factors demonstrate that this court is

justified in sanctioning the plaintiff. The fourth of the Wilson factors, which is to consider the

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effectiveness of lesser sanctions, however, assists the plaintiff. The plaintiff’s response suggests
that the true problem was plaintiff’s attorney’s failure to understand the Federal Rules of Civil
Procedure. A dismissal would impact the plaintiff the most, when she apparently provided her
attorneys with the information for the PPF. Further, since the plaintiff’s attorneys had clearly
already begun the process of collecting information for the PPF before the defendants filed their
motion, and the PPF was provided shortly after the deadline, the court finds lesser sanctions than
the requested dismissal with prejudice would be most effective.
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’s attorney has provided a creative explanation for the tardiness, but has not provided
substantial justification for the 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 Ethicon. Applying Rule 37(b)(2)(C)
ensures that the disobeying party, rather than the innocent party, bears those costs.
Specifically, to bring this Motion for Sanctions, Ethicon expended time and money
identifying Ms. Crable-Browning as one of the non-compliant plaintiffs; assessing the effect of
her discovery violations; drafting two separate motions for sanctions; serving those motions; and
replying to the plaintiff’s briefs in opposition. All knowledgeable MDL counsel would consider
these efforts, which could have been avoided had the plaintiff followed the court’s original order,
to be worth at least $1000. Based on my understanding of the economic and administrative realities
of multidistrict litigation, I conclude that a minimal valuation of Ethicon’s expenses is $1000.

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The court expects that counsel will be more diligent in the future and that such
circumstances will not again present themselves. This court has been forced to expend its limited
resources responding directly to this case. The court directs its time and resources to noncompliant
plaintiffs at the expense of other plaintiffs in this MDL. This court will continue to impose
monetary sanctions and/or dismiss cases when plaintiffs and their attorneys disregard this court’s
orders.
IV.

Conclusion
It is therefore ORDERED that the plaintiff has 30 business days from the entry of this

Order to pay Ethicon $1000 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. 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: February 10, 2016

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The court directs Ethicon to communicate with plaintiffs’ leadership regarding payment instructions.

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