King v. Coloplast Corp. et al

Filing 25

MEMORANDUM OPINION & ORDER denying 17 MOTION by Coloplast Corp. to Dismiss, and granting 22 MOTION by Johnetta King, Kenneth King for Leave 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:

Johnetta King, et al. v. Coloplast Corp., et al.

Civil Action No. 2:16-cv-01321

MEMORANDUM OPINION & ORDER
Pending before the court is Coloplast Corp.’s (“Coloplast”) Motion to Dismiss
[ECF No. 17]. The plaintiffs have responded to the motion [ECF No. 20], and
Coloplast has replied [ECF No. 21], making it ripe for decision. Also pending before
the court is the plaintiffs’ Motion for Leave to File Surreply [ECF No. 22]. For the
reasons stated below, Coloplast’s Motion [ECF No. 17] is DENIED and the plaintiffs’
Motion [ECF No. 22] 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. 7].
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 plaintiffs “served their
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 plaintiffs 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 plaintiffs served their PFS on Coloplast within the May 20
deadline. On May 30, 2017, Coloplast notified plaintiffs’ counsel via e-mail of the
purported deficiencies regarding the PFS. Def.’s Mot. Ex. B [ECF No. 17-2].
In response to Coloplast’s Motion to Dismiss, the plaintiffs state that on June
21, 2017, they served on Coloplast an amended PFS addressing the identified
deficiencies. Pls.’ 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
plaintiffs’ surreply, they state that they “emailed an Amended PFS on June 21, 2017
to Defendant at the same email addresses where Defendant acknowledged receiving
the original PFS.” Pls.’ Surreply 2 [ECF No. 22-1]. Attached to the plaintiffs’ surreply
are two emails, both sent from plaintiffs’ counsel to Coloplast’s counsel using the
same respective email addresses. The first email, dated May 19, 2017, includes the
plaintiffs’ PFS as a downloadable attachment. Pls.’ Surreply, Ex. A-1 [ECF No. 22-2].
The second email, dated June 21, 2017, includes the plaintiffs’ amended PFS as a
downloadable attachment. Pls.’ Surreply, Ex. A-2 [ECF No. 22-3].
The court finds that the plaintiffs have provided the court with documentation
to support the claim that they addressed the deficiencies in the PFS identified by

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

Conclusion
It is ORDERED that Coloplast’s Motion to Dismiss [ECF No. 17] is DENIED.

It is further ORDERED that Plaintiffs’ Motion for Leave to File Surreply [ECF No.
22] 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