Dye v. Boston Scientific Corporation

Filing 9

MEMORANDUM OPINION & ORDER granting in part and denying in part 6 MOTION by Boston Scientific Corporation to Dismiss, as more fully set forth herein; the plaintiff has 30 business days from the entry of this Order to pay BSC $1000 as minimal p artial 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 Cha rleston, West Virginia, upon motion by the defendants; 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 4/12/2017. (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:

Susan Dye v. Boston Scientific Corp.

Civil Action No. 2:16-cv-03972

MEMORANDUM OPINION & ORDER
Pending before the court is Boston Scientific Corp.’s (“BSC”) Motion to Dismiss
[ECF No. 6]. The plaintiff has responded to the motion [ECF No. 8], making it ripe
for decision. For the reasons stated below, BSC’s Motion to Dismiss [ECF No. 6] is
GRANTED in part and DENIED in part.
I.

Background

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
over 75,000 cases currently pending, over 15,000 of which are in the BSC MDL, MDL
2326. 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.
Pretrial Order (“PTO”) # 16, for example, ensures that BSC receives the plaintiffspecific information necessary to defend the cases against it. Under PTO # 16, each

plaintiff in this MDL must submit a Plaintiff Profile Form (“PPF”) to act as
interrogatory answers under Federal Rule of Civil Procedure 33 and responses to
requests for production under Federal Rule of Civil Procedure 34. See PTO # 16, No.
2:12-md-2326, entered Oct. 4, 2012 [ECF No. 211]. Each plaintiff must submit a PPF
within 60 days of filing a Short Form Complaint. Id. at ¶ 1(b). Failure to do so subjects
the plaintiff “to sanctions, to be determined by the court, upon motion of the
defendants.” Id. ¶ 1(i). The parties jointly drafted the requirements for PTO # 16, and
I entered it as applicable to every one of the thousands of cases in this MDL.
Here, the plaintiff filed her complaint on April 27, 2016, and her PPF was due
to BSC by June 26, 2016. The plaintiff did not submit a PPF during this time period.
Indeed, the plaintiff did not submit a PPF until BSC filed the instant motion, making
the PPF more than 216 days late. BSC asks the court to dismiss the plaintiff’s case
or, alternatively, sanction the plaintiff a reasonable monetary penalty under the
terms and conditions that the court deems appropriate. The plaintiff, while admitting
that the PPF was untimely, insists sanctions are not appropriate because the
discovery deficiency was cured and there was no bad faith present.
II.

Legal Standard

Federal Rule of Civil Procedure 37(b)(2) provides that a court may issue “just
orders” when a party fails to provide or permit discovery. Fed. R. Civ. P. 37(b)(2)(A).
In the MDL world, this authority has particular significance. 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,” and to carry out this task in a

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smooth and efficient manner, the judge must establish and, more importantly,
enforce rules for discovery. In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d
1217, 1231 (9th Cir. 2006). Rule 37(b)(2) supplies the tool for this enforcement,
allowing a judge to impose sanctions when a party fails to comply with the court’s
discovery orders. See id. at 1232 (“[A] willingness to resort to sanctions, sua sponte if
necessary, may ensure compliance with the [discovery] management program.”
(internal citation omitted)); 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.”
Fed. R. Civ. P. 37(b)(2)(C). 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 BSC. Applying Rule

The plaintiff’s contention that the court must apply the Wilson factors before ordering monetary
sanctions 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)). 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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37(b)(2)(C) ensures that the disobeying party, rather than the innocent party, bears
those costs. Accordingly, BSC’s Motion to Dismiss is DENIED in part in regards to
dismissing the plaintiff’s claim and GRANTED in part to the extent that it seeks the
payment of reasonable expenses.
To bring this Motion to Dismiss, BSC expended time and money identifying
Ms. Dye as one of the non-compliant plaintiffs; assessing the effect of her discovery
violations; drafting a motion to dismiss or for sanctions; serving the motion; and
replying to the plaintiff’s brief in opposition. Based on my understanding of the
economic and administrative realities of multidistrict litigation, I conclude that a
more representative, though still minimal, valuation of BSC’s expenses, and the
proper sanction in this case, is in the amount of $1000.
IV.

Conclusion

It is therefore ORDERED that the plaintiff has 30 business days from the entry
of this Order to pay BSC $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. It is further ORDERED that BSC’s Motion to Dismiss [ECF No. 6] is
GRANTED in part and DENIED in part. 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.

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

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The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: April 12, 2017

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