Winans v. C. R. Bard, Inc.

Filing 19

MEMORANDUM OPINION & ORDER The 12 MOTION by C. R. Bard, Inc. to Dismiss for Faiure to Comply with Pretrial Orders Regarding Plaintiff Fact Sheets, or in the Alternative, Motion for Show Cause Order for Plaintiff's Failure to Serve a Substantially Complete Plaintiff Fact Sheet and Motion to Stay Pending Resolution of Alternative Motion is DENIED. Signed by Judge Joseph R. Goodwin on 6/12/2018. (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:

C. R. BARD, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2187

THIS DOCUMENT RELATES TO:

Winans v. C. R. Bard, Inc.

Civil Action No. 2:16-cv-07824

MEMORANDUM OPINION & ORDER
Pending before the court is the Defendant’s Motion to Dismiss for Failure to
Comply with Pretrial Orders Regarding Plaintiff Fact Sheets, or in the Alternative,
Motion for Show Cause Order for Plaintiff’s Failure to Serve a Substantially
Complete Plaintiff Fact Sheet and Motion to Stay Pending Resolution of Alternative
Motion [ECF No. 12] filed by C. R. Bard, Inc. (“Bard”). The plaintiff has responded to
the Motion [ECF No. 15], and Bard has replied [ECF No. 18]. 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 nearly 17,000 cases currently pending, approximately 1600 of which
are in the Bard MDL, MDL 2187.

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 Bard
Wave 7. Pretrial Order (“PTO”) # 275 [ECF No. 5124], In re: C. R. Bard, Inc., Pelvic

Repair

Sys.

Prods.

Liab.

Litig.,

No. 2:10-md-02187,

http://www.wvsd.uscourts.gov/MDL/2187/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
# 275, for example, provides that each plaintiff in Wave 7 must submit a completed
Plaintiff Fact Sheet (“PFS”) to defendants by March 19, 2018. PTO # 275, at 2. The
plaintiff, however, did not comply with PTO # 275 in that she failed to submit a
completed PFS, and on this basis, Bard now seeks dismissal of her case with
prejudice.
II.

Discussion
Pursuant to PTO # 275, each plaintiff in Wave 7 was ordered to complete and

serve a PFS on defendants by March 19, 2018. PTO # 275, at 2. According to Bard,
the plaintiff submitted a PFS within the court-ordered deadline, but it was “woefully
deficient in several material respects.” Mem. of Law in Supp. of Def.’s Mot. to Dismiss
4. Thus, Bard contacted plaintiff’s counsel on April 29, 2018 and requested that the

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plaintiff provide a completed PFS by May 2, 2018—three days later—or else stipulate
to the dismissal of the plaintiff’s case with prejudice. Id. at 5. When plaintiff’s counsel
did not respond, Bard sent its second and third requests for the completed PFS on
May 8, 2018 and May 17, 2018, respectively. Bard then filed this Motion on May 21,
2018.
In response, the plaintiff concedes that the PFS was not filed by the March 19,
2018 deadline. However, she notes that the completed PFS was filed and served on
May 29, 2018—more than two months after the deadline. She also notes that Bard
did not give the plaintiff twenty days to cure the deficiencies in her original PFS, as
required by PTO # 27. Instead, Bard requested that the plaintiff cure her deficiencies
and serve the completed PFS within only three days of receiving Bard’s deficiency
notice.
In its reply, Bard notes that the plaintiff had more than twenty days to cure
the deficiencies in her original PFS because Bard waited twenty-two days after
sending its deficiency notice to file the motion to dismiss, despite requesting that the
plaintiff comply in only three days. Bard asserts that waiting more than twenty days
to file its motion complies with the mandate of PTO # 27, even if the timeframe
provided in the deficiency notice itself is less than twenty days.
Under these circumstances, I FIND that the imposition of sanctions as
requested by Bard is unwarranted in this case.

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III.

Conclusion
It is ORDERED that the Defendant’s Motion to Dismiss for Failure to Comply

with Pretrial Orders Regarding Plaintiff Fact Sheets, or in the Alternative, Motion
for Show Cause Order for Plaintiff’s Failure to Serve a Substantially Complete
Plaintiff Fact Sheet and Motion to Stay Pending Resolution of Alternative Motion
[ECF No. 12] 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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June 12, 2018