Thomas et al v. Coloplast Corp.

Filing 15

MEMORANDUM OPINION AND ORDER granting 13 MOTION by Coloplast Corp. to Dismiss With Prejudice for Failure to Submit a Plaintiff Fact Sheet; the plaintiff's case is DISMISSED with prejudice. Signed by Judge Joseph R. Goodwin on 5/8/2017. (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:

Katherine Thomas, et al., v. Coloplast Corp.

Civil Action No. 2:15-cv-12815

MEMORANDUM OPINION AND ORDER
Pending before the court is Coloplast Corp.’s (“Coloplast”) Motion to Dismiss
for Failure to Submit a Plaintiff Fact Sheet [ECF No. 13]. The plaintiff has not
responded, and the motion is ripe for my decision. For the reasons stated below, the
motion is GRANTED.
Coloplast’s Motion arises from this court’s Order [ECF No. 12], entered on
March 10, 2017, denying Coloplast’s s Motion to Compel and in the Alternative to
Dismiss, for failure to serve a Plaintiff Fact Sheet (“PFS”) in compliance with Pretrial
Order (“PTO”) # 107. 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 at 4–7 [ECF No. 12] (applying the

Wilson factors to Ms. Thomas’s case).1 Concluding that the first three factors weighed

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 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
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in favor of sanctions as requested by Coloplast, I nevertheless declined to award the
requested sanctions of either dismissal or monetary sanctions 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 the deadlines set forth in PTO # 107. I afforded her 30 business days
from the entry of the Order to submit to Coloplast a completed PFS, with the caveat
that a failure to do so may result in dismissal of her case upon motion by Coloplast.
Despite this warning, Ms. Thomas has again failed to comply with this court’s orders
and did not provide Coloplast with her PFS within the 30-day period. Consequently,
Coloplast moved to dismiss this case.
Because the less drastic sanction instituted against Ms. Thomas has had no
effect on her compliance with and response to this court’s discovery orders, which she
has continued to disregard, I find that dismissal is now appropriate. For the reasons
explained in my March 10, 2017 Order [ECF No. 12], it is ORDERED that the
defendant’s Motion to Dismiss [ECF No. 14] is GRANTED, and the plaintiff’s case is
DISMISSED with prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: May 8, 2017

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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