Morton et al v. Boston Scientific Corporation

Filing 12

MEMORANDUM OPINION & ORDER The 9 MOTION to Dismiss by Boston Scientific Corporation to Dismiss With Prejudice is DENIED. Signed by Judge Joseph R. Goodwin on 5/22/2018. (cc: counsel of record; any unrepresented party) (kab)

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

Morton et al v. Boston Scientific Corporation

Civil Action No. 2:16-cv-05796

MEMORANDUM OPINION & ORDER
Pending before the court is the Defendant’s Motion to Dismiss with Prejudice
[ECF No. 9] filed by Boston Scientific Corporation (“BSC”). The plaintiff has
responded to the Motion. [ECF No. 11]. Thus, this matter is ripe for my review. For
the reasons stated below, the 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 six remaining active
MDLs, there are more than 19,000 cases currently pending, approximately 3800 of
which are in the BSC MDL, MDL 2326.
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 BSC
Wave 4. Pretrial Order (“PTO”) # 175 [ECF No. 4955], In re Bos. Sci. Corp., Pelvic

Repair

Sys.

Prods.

Liab.

Litig.,

No. 2:12-md-02326,

http://www.wvsd.uscourts.gov/MDL/boston/orders.html.
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
# 175, for example, provides that each plaintiff in Wave 4 must submit a completed
Plaintiff Fact Sheet (“PFS”) to defendants by March 19, 2018. PTO # 175, at 2. The
plaintiff, however, did not comply with PTO # 175 in that she failed to submit a
completed PFS within the court-ordered deadline. On this basis, BSC now seeks
dismissal of the plaintiff’s case with prejudice.
II.

Discussion
Pursuant to PTO # 175, each plaintiff in Wave 4 was ordered to complete and

serve a PFS on defendants by March 19, 2018. PTO # 175, at 2. According to BSC,
the plaintiff failed to submit a completed PFS within the court-ordered deadline.
Accordingly, pursuant to PTO # 175, BSC filed this Motion to Dismiss on April 16,
2018.
In response, the plaintiff concedes that she did not file the PFS by March 19,
2018. However, plaintiff’s counsel served the completed PFS on BSC approximately
one month after the March 19, 2018 deadline. The plaintiff also notes that BSC never
advised her, prior to filing its Motion to Dismiss, that the PFS remained outstanding.

2

Under these circumstances, I FIND that the minimal prejudice suffered by BSC due
to the plaintiff’s delayed filing of the PFS does not warrant the imposition of sanctions
as requested by BSC in this case.
III.

Conclusion
It is ORDERED that the Defendant’s Motion to Dismiss with Prejudice [ECF

No. 9] is DENIED.
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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May 22, 2018