Wilkins v. Ethicon, Inc. et al

Filing 7

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Sanctions) granting in part and denying in part 5 MOTION by Ethicon, Inc., Johnson & Johnson for Sanctions re Plaintiff's failure to timely serve her Plaintiff Profile Form, 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 plaintiffs 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 3/25/2016. (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:
Wilkins v. Ethicon, Inc., et al.

Civil Action No. 2:15-cv-09327

MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Sanctions)
Pending before the court is Ethicon, Inc. and Johnson & Johnson’s (collectively “Ethicon”)
Motion for Sanctions [ECF No. 5]. The plaintiff’s only response to the motion is a notice of
compliance stating that as of the date of the notice, the plaintiff has served the defendant with her
PPF [ECF No. 6], and the deadline for responding or replying has passed. Thus, this matter is ripe
for my review. For the reasons stated below, Ethicon’s Motion for Sanctions [ECF No. 5] is
GRANTED in part and DENIED in part.
I.

Background

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 to treat pelvic organ
prolapse and stress urinary incontinence. In the seven MDLs, there are over 70,000 cases currently
pending, approximately 30,000 of which are in the Ethicon, Inc. MDL, MDL 2327. 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”) # 17, for example, ensures that
Ethicon receives the plaintiff-specific information necessary to defend the cases against it. Under

PTO # 17, 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 PTO # 17, In re: Ethicon, Inc., Pelvic
Repair System Prods. Liab. Litig., No. 2:12-md-2327, entered Oct. 4, 2012, available at
http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html). Each plaintiff must submit a PPF
within 60 days of filing a Short Form Complaint. (Id. ¶ 1b). Failure to do so subjects the plaintiff
“to sanctions, to be determined by the court, upon motion of the defendants.” (Id. ¶ 1i). The parties
jointly drafted the requirements for PTO # 17, and I entered it as applicable to every one of the
thousands of cases in this MDL.
Here, the plaintiff filed her complaint on July 6, 2015, and her PPF was due to Ethicon by
September 4, 2015. The plaintiff did not submit a PPF during this time period. Indeed, the plaintiff
did not submit a PPF until Ethicon filed the instant motion, making the PPF more than 134 days
late. Ethicon asks the court to dismiss the plaintiff’s case or, alternatively, sanction the plaintiff a
reasonable monetary penalty. The plaintiff’s response does not directly address the defendant’s
motion, and only represents that the PPF has now been sent.
II.

Legal Standard

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

2

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 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 Ethicon. Applying Rule
37(b)(2)(C) ensures that the disobeying party, rather than the innocent party, bears those costs.
Accordingly, Ethicon’s Motion to Dismiss is DENIED in part in regard to dismissing the
plaintiff’s claim and GRANTED in part to the extent that it seeks the payment of reasonable
expenses.
To bring this Motion for Sanctions, Ethicon expended time and money identifying Ms.
Doyle as one of the non-compliant plaintiffs; assessing the effect of her discovery violations;
drafting a motion to dismiss or for sanctions; serving the motion; and replying to the plaintiff’s
brief in opposition. All knowledgeable MDL counsel would consider these efforts, which could
have been avoided had the plaintiff followed the court’s order, to be worth $1000 at the least.

3

Based on my understanding of the economic and administrative realities of multidistrict litigation,
I conclude that a minimal representative valuation of Ethicon’s expenses is $1000.
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.1 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 Ethicon’s Motion for
Sanctions [ECF No. 5] 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
unrepresented party.

ENTER: March 25, 2016

1

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

4