Wright v. Coloplast Corp.

Filing 21

ORDER granting in part and denying in part 16 MOTION by Coloplast Corp. to Compel Plaintiff to produce a completed Plaintiff Fact Sheet and in the Alternative to Dismiss, as more fully set forth herein; the plaintiff has until 12/19/2016 to pay Col oplast $1000 as minimal partial compensation for the reasonable expenses caused by the plaintiff's 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. Signed by Judge Joseph R. Goodwin on 11/29/2016. (cc: counsel of record; any unrepresented party) (kp)

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:

Deborah Wright v. Coloplast Corp.

Civil Action No. 2:16-cv-01562
ORDER

Pending before the court is Coloplast Corp.’s Motion to Compel and in the
Alternative to Dismiss [ECF No. 16]. The plaintiff has responded [ECF No. 17], and
this matter is now ripe for my review. For the reasons stated below, the Motion is
GRANTED in part and DENIED in part.
I.

Background
The defendant Coloplast Corp. (“Coloplast”) seeks a variety of relief because

plaintiff failed to timely provide a completed Plaintiff Fact Sheet (“PFS”). Specifically,
Coloplast asks that (1) plaintiff be ordered to provide the PFS within three days and
that plaintiff’s case be dismissed with prejudice if plaintiff fails to comply; (2) in the
alternative, that the plaintiff’s case be dismissed with prejudice; (3) that the plaintiff
be required to pay monetary sanctions, or (4) that the court grant other appropriate
relief to discourage noncompliance with court deadlines.
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
nearly 58,000 cases currently pending, approximately 500 of which are still active in
the Coloplast MDL, MDL 2387. 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. For example, in certain cases in this MDL, the plaintiff
must submit a completed Plaintiff Fact Sheet (“PFS”) [ECF No. 4]. Any plaintiff who
fails to comply with the PFS obligations may be subject to sanctions. See Pretrial
Order (“PTO”) # 12 at ¶ 2(d) and PTO # 105 at ¶ 3.
As a part of this MDL, I chose 240 cases naming Coloplast only for inclusion in
Coloplast Wave 1, a group of cases to be prepared for trial and, if necessary, remanded
back to the appropriate court. The instant case is governed by discovery deadlines for
Coloplast Wave 1 set forth in PTO # 103. [ECF No. 4]. Pursuant to PTO # 103, the
plaintiffs were to complete and serve a PFS on Coloplast by August 19, 2016. Id. at 2.
Although all other deadlines for Coloplast Wave 1 ultimately were stayed pursuant
to PTO # 109, the August 19 PFS due date remained in place. [ECF No. 7].
According to Coloplast, the plaintiff, Ms. Deborah Wright, failed to submit a
PFS within the court-ordered timeframe for service pursuant to PTO # 103. The
parties agreed to extend the deadline to serve the PFS, making the plaintiff’s PFS
due on or before October 7, 2016. The plaintiff failed to meet the deadline and moved
the court to extend time until October 27, 2016 to serve the PFS. See Pl.’s Mot. To
Extend Time Limit for Service of PFS [ECF No. 10]. The court denied this motion on

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October 3, 2016. [ECF No. 12]. Defendant Coloplast filed the motion at issue on
October 12, 2016. On October 25, 2016, plaintiff served the completed PFS on
Coloplast.
II.

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

a party for failing to comply with discovery orders. This authority has particular
significance in the MDL context. Specifically, when handling seven MDLs, each
containing thousands of individual cases, case management becomes of utmost
importance. 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.” In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1231
(9th Cir. 2006). To carry out this task in a smooth and efficient manner, I must define
and then strictly adhere to rules for discovery. 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
and administered to secure the just, speedy, and inexpensive determination of every
action and proceeding”).
Pretrial orders—and the parties’ compliance with those orders and the
deadlines set forth therein—“are the engine that drives disposition on the merits.” In

re Phenylpropanolamine, 460 F.3d at 1232. A “willingness to resort to sanctions” in
the event of noncompliance can ensure that the engine remains in tune, resulting in

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better administration of the vehicle of multidistrict litigation. Id.; 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.”). 1
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.” 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 Coloplast. Applying Rule 37(b)(2)(C)
ensures that the disobeying party, rather than the innocent party, bears those costs.
Accordingly, Coloplast’s Motion to Compel is GRANTED to the extent that it
seeks the payment of reasonable expenses. I find that $1000 is a minimally
representative valuation of Coloplast’s expenses. This number accounts for the time
and money Coloplast spent identifying the plaintiff as one of the non-compliant

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Some plaintiffs contend that the court must apply the Wilson factors before ordering monetary sanctions, which is
inaccurate. The Fourth Circuit Court of Appeals has directed courts to consider the Wilson factors in the case of
“extreme sanction[s],” such as dismissal or judgment by default, where the “district court’s desire to enforce its
discovery orders is confronted head-on by the party’s rights to a trial by jury and a fair day in court.” Mut. Fed. Sav.
& Loan Ass’n v. Richards & Associates, 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) cert. denied, 434 U.S. 1020 (1978)). The minor sanction ultimately ordered
in this case, partial compensation of the expenses caused by the plaintiff’s discovery violation, does not raise these
concerns. Therefore, I do not find it necessary to review the Wilson factors.

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plaintiffs; assessing the effect of her discovery violations; drafting a motion for
sanctions; and serving the motion. All knowledgeable MDL counsel would consider
these efforts, which would have been avoided had the plaintiff followed the court’s
order, to be worth $1000, at the least.
To the extent Coloplast seeks dismissal of the plaintiff’s case, its motion is
DENIED, and with regards to the production of the PFS, which Coloplast has now
received, the motion to compel is DENIED as moot.
IV.

Conclusion
For the reasons stated above, Coloplast’s Motion to Compel [ECF No. 16] is

GRANTED in part and DENIED in part. It is ORDERED that the plaintiff has until
December 19, 2016 to pay Coloplast $1000 as minimal partial compensation for the
reasonable expenses caused by the plaintiff’s failure to comply with discovery.2 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.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.

ENTER:

November 29, 2016

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