Fredricks v. Boston Scientific Corporation
Filing
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MEMORANDUM OPINION AND ORDER The 10 MOTION by Boston Scientific Corporation to Dismiss is GRANTED, and the plaintiff's case is DISMISSED with prejudice. Signed by Judge Joseph R. Goodwin on 4/14/2017. (cc: counsel of record; any unrepresented party) (mek)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE:
BOSTON SCIENTIFIC CORP.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2326
______
THIS DOCUMENT RELATES TO:
Sandra Fredricks v. Boston Scientific Corp.
Civil Action No. 2:15-cv-13574
MEMORANDUM OPINION AND ORDER
Pending before the court is Boston Scientific Corp.’s (“BSC”) Motion to Dismiss
for Failure to Timely Serve her Plaintiff Profile Form [ECF No. 10]. The plaintiff has
responded to the motion [ECF No. 11], making it ripe for decision. For the reasons
stated below, the motion is GRANTED.
BSC’s Motion arises from this court’s Order [ECF No. 8], entered on February
18, 2016, denying BSC’s Motion for Sanctions, including monetary penalties,
dismissal and any other sanction deemed appropriate by the court, for failure to serve
a Plaintiff Profile Form (“PPF”) in compliance with Pretrial Order (“PTO”) # 16. 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. 8] (applying the Wilson factors to Ms.
Fredricks’s case).1 Concluding that the first three factors weighed in favor of
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
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sanctions as requested by BSC, 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 # 16. I afforded her 30 business days from
the entry of the Order to submit to BSC a completed PPF, with the caveat that a
failure to do so may result in dismissal of her case upon motion by BSC. Despite this
warning, Ms. Fredricks has again failed to comply with this court’s orders and did
not provide BSC with her PPF within the 30-day period. Consequently, BSC moved
to dismiss this case.
Because the less drastic sanction instituted against Ms. Fredricks has had no
effect on her compliance with and response to this court’s discovery orders, which she
has continued to blatantly disregard, I find that dismissal is now appropriate. For the
reasons explained in my February 18, 2016 Order [ECF No. 8], it is ORDERED that
the defendant’s Motion to Dismiss [ECF No. 10] 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.
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, 561 F.2d at
503–06).
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ENTER: April 14, 2017
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