Richardson v. Coloplast Corp.

Filing 34

MEMORANDUM OPINION & ORDER The 29 MOTION by Coloplast Corp. to Dismiss is DENIED; counsel for plaintiffs must meet and confer with counsel for defendant on or before 1/2/2018 to engage in good faith discussions about the possibility of settlement; failure to comply with this Order may result in dismissal upon motion by the defendant; and 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 12/1/2017. (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:

COLOPLAST CORP.
PELVIC SUPPORT SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2387

THIS DOCUMENT RELATES TO:

Alechia Richardson, et al. v. Coloplast Corp.

Civil Action No. 2:16-cv-01391

MEMORANDUM OPINION & ORDER
Pending before the court is Defendant’s Motion to Dismiss [ECF No. 29] filed
by Coloplast Corp. (“Coloplast”). The plaintiffs have responded [ECF No. 31] and
Coloplast has replied [ECF No. 32], making the matter ripe for my review. For the
reasons stated below, Coloplast’s Motion is DENIED.
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
nearly 30,000 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. 20].
Managing multidistrict litigation requires the court to streamline certain
litigation procedures in order to improve efficiency for the parties and the court. PTO
# 134, for example, required plaintiffs’ counsel to meet and confer with counsel for
defendant on or before August 9, 2017 to engage in good faith discussions about the
possibility of settlement [ECF No. 27]. Plaintiffs’ counsel, however, did not comply
with PTO # 134 in that they wholly failed to meet and confer with counsel for
defendant. On this basis, defendant now seeks dismissal of the plaintiffs’ case with
prejudice.
II.

Legal Standard
Federal Rule of Civil Procedure 37(b)(2) allows a court to sanction a party for

failing to comply with discovery orders. See Fed. R. Civ. P. 37(b)(2) (stating that a
court “may issue further just orders” when a party “fails to obey an order to provide
or permit discovery”). Before levying a harsh sanction under Rule 37, such as
dismissal or default, a court must first consider the following four factors identified
by the Fourth Circuit Court of Appeals:
(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 Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir.
1989) (citing Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 503–06 (4th Cir. 1977)).

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In applying these factors to the case at bar, I must be particularly cognizant of
the realities of multidistrict litigation and the unique problems an MDL judge faces.
Specifically, when handling seven MDLs, containing thousands of individual cases in
the aggregate, case management becomes of utmost importance. See In re

Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1231 (9th Cir. 2006)
(emphasizing the “enormous” task of an MDL court in “figur[ing] out a way to move
thousands of cases toward resolution on the merits while at the same time respecting
their individuality”). I must define rules for discovery and then strictly adhere to
those rules, with the purpose of ensuring that pretrial litigation flows as smoothly
and efficiently as possible. See id. at 1232 (“[T]he district judge must establish
schedules with firm cutoff dates if the coordinated cases are to move in a diligent
fashion toward resolution by motion, settlement, or trial.”); see also Fed. R. Civ. P. 1
(stating that the Federal Rules of Civil Procedure “should be construed, administered,
and employed by the court and the parties to secure the just, speedy, and inexpensive
determination of every action and proceeding”).
In turn, counsel must collaborate with the court “in fashioning workable
programmatic procedures” and cooperate with these procedures thereafter. In re

Phenylpropanolamine, 460 F.3d at 1231–32. Pretrial orders—and the parties’
compliance with those orders and the deadlines set forth therein—“are the engine
that drives disposition on the merits.” Id. at 1232. And a “willingness to resort to
sanctions” in the event of noncompliance can ensure that the engine remains in tune,
resulting in better administration of the vehicle of multidistrict litigation. Id.; see also

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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. This necessarily includes the power to dismiss cases where
litigants do not follow the court’s orders.”).
III.

Discussion
Pursuant to PTO # 134, counsel for all plaintiffs identified in the exhibit

attached thereto were directed to meet and confer with counsel for defendant on or
before August 9, 2017 to engage in good faith discussions about the possibility of
settlement. PTO # 134, at 1. This case was identified on Exhibit A to PTO # 134. Id.
at 3.
According to defendant, plaintiffs’ counsel did not meet and confer with
defendant’s counsel because plaintiffs’ counsel was unable to contact their clients.
Therefore, no meaningful discussion about the possibility of settlement could take
place. Accordingly, pursuant to PTO # 134, defendant now moves for dismissal of the
plaintiffs’ case with prejudice. In response, plaintiffs’ counsel state that numerous
attempts to contact the plaintiffs have been unsuccessful.
Applying the Wilson factors to these facts and bearing in mind the unique
context of multidistrict litigation, I conclude that although recourse under Rule 37 is
justified, the plaintiffs should be afforded one more chance to comply with PTO # 134
before further sanctions are imposed.
The first factor, bad faith, is difficult to ascertain, given that plaintiffs’ counsel
has not had recent contact with their clients. This indicates a failing on the part of

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the plaintiff, who have an obligation to provide counsel with any information needed
to prosecute their case. See Link v. Wabash R.R. Co., 370 U.S. 626, 634 n.10 (1962)
(“[A] civil plaintiff may be deprived of his claim if he failed to see to it that his lawyer
acted with dispatch in the prosecution of his lawsuit.”). Furthermore, as set forth in
PTO # 2, “[a]ll attorneys representing parties to this litigation . . . bear the
responsibility to represent their individual client or clients.” PTO # 2, at ¶ E [ECF
No. 10], In re Coloplast Corp., Pelvic Support Sys. Prods. Liab. Litig.,
No. 2:12-md-02387. This includes awareness of and good faith attempts at compliance
with all PTOs and other court orders. The plaintiff nevertheless failed to comply.
Although these failures do not appear to be callous, the fact that they were blatant
and in full knowledge of the court’s orders leads me to weigh the first factor against
the plaintiff. See In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig. ,
496 F.3d 863, 867 (8th Cir. 2007) (“While not contumacious, perhaps, this is a blatant
disregard for the deadlines and procedure imposed by the court, [and t]herefore, we
conclude that the [plaintiffs] did not act in good faith.”).
The second factor—prejudice caused by noncompliance—also leans toward the
order of sanctions. Defendant did not learn of plaintiffs’ counsel’s inability to contact
their clients until August 15, 2017—a week after the meet-and-confer deadline. Thus,
defendant likely expended substantial time and resources prior to the deadline
attempting to set up the court-ordered meeting. Furthermore, because the defendant
has had to divert attention away from responsive plaintiffs and onto this case, the
delay has unfairly impacted the progress of the remaining plaintiffs in MDL 2387.

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The adverse effect on the management of the MDL as a whole segues to the
third factor, the need to deter this sort of noncompliance. When parties fail to comply
with deadlines provided in pretrial orders, a domino effect develops, resulting in the
disruption of other MDL cases. This cumbersome pattern goes against the purpose of
MDL procedure, and I must deter any behavior that would allow it to continue. See
H.R. Rep. No. 90-1130, at 1 (1967), reprinted in 1968 U.S.C.C.A.N. 1898, 1901
(stating that the purpose of establishing MDLs is to “assure the uniform and
expeditious treatment” of the included cases).
Application of the first three factors demonstrates that this court is justified in
sanctioning the plaintiffs. However, application of the fourth factor—the
effectiveness of less drastic sanctions—counsels against the relief sought by
defendant. Rather than imposing harsh sanctions at this time, the court opts for a
lesser sanction and allows the plaintiffs one more chance to comply, subject to
dismissal, upon motion by the defendant, if they fail to do so. This course of action is
consistent with PTO # 134, which warned plaintiffs of the possibility of dismissal
upon failure to comply with the procedures set forth therein. See PTO # 134 ¶ 6.
Alternative lesser sanctions, such as the ones proposed in Rule 37(b)(2)(i)–(iv),
are simply impracticable, and therefore ineffective, in the context of an MDL
containing approximately 140 cases. The court cannot spare its already limited
resources enforcing and monitoring sanctions that are qualified by the individual
circumstances of each case, nor would it be fair for the court to place this
responsibility on defendant. Therefore, considering the administrative and economic

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realities of multidistrict litigation, I conclude that affording the plaintiffs a final
chance to comply, subject to dismissal if they fail to do so, is a “just order” under Rule
37 and in line with the Federal Rules of Civil Procedure as a whole. See Fed. R. Civ.
P. 1 (stating that the Federal Rules of Civil Procedure “should be construed,
administered, and employed by the court and the parties to secure the just, speedy,
and inexpensive determination of every action and proceeding”).
IV.

Conclusion
It is ORDERED that Defendant’s Motion to Dismiss [ECF No. 29] is DENIED.

It is further ORDERED that counsel for plaintiffs must meet and confer with
counsel for defendant on or before January 2, 2018 to engage in good faith
discussions about the possibility of settlement. Failure to comply with this
Order may result in dismissal upon motion by the defendant. 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:

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December 1, 2017