DuBose et al v. Boston Scientific Corporation et al

Filing 7

MEMORANDUM OPINION & ORDER denying 6 MOTION by Boston Scientific Corporation to Dismiss, as more fully set forth herein; the plaintiffs have 30 business days from the entry of this Order to submit to BSC a completed PPF; failure to comply with this Order will result in dismissal upon motion by the defendant; plaintiffs' counsel send a copy of this Order to the plaintiffs via certified mail, return receipt requested, and file a copy of the receipt. Signed by Judge Joseph R. Goodwin on 4/14/2017. (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:

DuBose, et al. v. Boston Scientific Corp.

Civil Action No. 2:16-cv-07674

MEMORANDUM OPINION & ORDER
Pending before the court is Boston Scientific Corporation’s (“BSC”) Motion to
Dismiss [ECF No. 6]. The plaintiffs have not responded, and the deadline for
responding has expired. Thus, this matter is ripe for my review. For the reasons
stated below, BSC’s Motion to Dismiss [ECF No. 6] is DENIED.
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, provides that 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]. 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. The
instant plaintiffs, however, did not comply with PTO # 16 in that they wholly failed
to submit a completed PPF, and on this basis, BSC now moves for dismissal and
reasonable sanctions against the plaintiffs. Specifically, BSC seeks reasonable
monetary sanctions, dismissal of the plaintiffs’ case, and/or another sanction deemed
appropriate by the court.
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)).

2

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, each containing thousands of individual
cases,

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 Freeman v. Wyeth, 764 F.3d 806, 810 (8th Cir.

3

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 # 16, each plaintiff is required to submit a completed PPF

within 60 days of filing a Short Form Complaint. PTO # 16 at ¶ 1b. The purpose of
the PPF, as was the case in In re Phenylpropanolamine, is “to give each defendant
the specific information necessary to defend the case against it . . . [and] without this
device, a defendant [is] unable to mount its defense because it [has] no information
about the plaintiff or the plaintiff’s injuries outside the allegations of the complaint.”
460 F.3d at 1234. To this end, PTO # 16 provided that “[a]ny plaintiff who fails to
comply with the PPF obligations under this Order may, for good cause shown, be
subject to sanctions, to be determined by the court, upon motion of the defendants.”
PTO # 16 at ¶ 1i.
Here, the plaintiffs filed their complaint on August 12, 2016, and the plaintiffs’
PPF was due to BSC by October 11, 2016. As of the date of this Order, the plaintiffs
have not submitted a PPF, making it more than 216 days late. BSC asks the court to
dismiss the plaintiffs’ case or, alternatively, sanction the plaintiffs a reasonable
monetary penalty under the terms and conditions that the court deems appropriate.
The plaintiffs made no response to BSC’s motion to dismiss. 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

4

should be afforded one more chance to comply with discovery before further sanctions
are imposed.
The first factor, bad faith, is difficult to ascertain, given that plaintiffs’ counsel
have not responded. Counsel’s inability to contact the plaintiffs is not an excuse and
instead indicates a failing on the part of the plaintiffs, who have an obligation to
provide counsel with any information needed to prosecute her case, including up-todate contact information. 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 # 4, “[a]ll attorneys representing parties to this litigation . . . bear the
responsibility to represent their individual client or clients.” PTO # 4 ¶ C, No. 2:12md-002326, entered Apr. 17, 2012 [ECF No. 103]. This includes awareness of and
good faith attempts at compliance with all PTOs and other court orders. PTO # 16—

which was jointly drafted by the leadership counsel of both parties—expressly states
that failure to timely submit a PPF could result in sanctions. The plaintiffs
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 and discovery
deadlines leads me to weigh the first factor against the plaintiffs. 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.”).

5

The second factor—prejudice caused by noncompliance—also leans toward the
order of sanctions. Without a PPF, BSC is “unable to mount its defense because it
[has] no information about the plaintiff or the plaintiff’s injuries outside the
allegations of the complaint.” In re Phenylpropanolamine, 460 F.3d at 1234.
Furthermore, because BSC has had to divert its attention away from timely plaintiffs
and onto Ms. DuBose, the delay has unfairly impacted the progress of the remaining
plaintiffs in MDL 2327.
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. From the representations of BSC’s counsel, a
considerable number of plaintiffs have failed to supply BSC with a timely PPF. In
fact, of the motions filed by BSC to date, the majority of these plaintiffs, including
Ms. DuBose, have failed to supply a PPF at all. Consequently, the court expects to
have to evaluate and dispose of a significant number of motions similar to the one at
bar, thereby directing its time and resources to noncompliant plaintiffs at the expense
of other plaintiffs in this MDL. 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).

6

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 the
defendants. Rather than imposing harsh sanctions at this time, the court opts for a
lesser sanction and allows Ms. DuBose one more chance to comply with PTO # 16
subject to dismissal, upon motion by the defendants, if she fails to do so. This course
of action is consistent with PTO # 16, which warned plaintiffs of the possibility of
dismissal upon failure to submit a timely PPF. See PTO # 16 at ¶ 1g (“If a plaintiff
does not submit a PPF within the time specified in this Order, defendants may move
immediately to dismiss that plaintiff’s case without first resorting to [] deficiency cure
procedures.”).
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 over 15,000 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 BSC.
Therefore, considering the administrative and economic realities of multidistrict
litigation, I conclude that affording Ms. DuBose a final chance to comply with
discovery, subject to dismissal if she fails 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,

7

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 BSC’s Motion to Dismiss [ECF No. 6] is DENIED. It is

further ORDERED that the plaintiffs have 30 business days from the entry of this
Order to submit to BSC a completed PPF. Failure to comply with this Order will
result in dismissal upon motion by the defendant. Finally, it is ORDERED that
plaintiffs’ counsel send a copy of this Order to the plaintiffs 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:

8

April 14, 2017