Amaro et al v. Boston Scientific Corporation
Filing
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MEMORANDUM OPINION AND ORDER granting 12 MOTION by Boston Scientific Corporation to Dismiss With Prejudice, for the reasons set forth herein. Signed by Judge Joseph R. Goodwin on 7/19/2018. (cc: counsel of record; any unrepresented party) (brn)
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:
Amaro et al. v. Boston Scientific Corporation
Civil Action No. 2:16-cv-08682
MEMORANDUM OPINION AND ORDER
Pending before the court is the Defendant’s Motion to Dismiss with Prejudice
[ECF No. 12] filed by Boston Scientific Corporation (“BSC”). The plaintiffs have not
responded, and the time for responding has expired. Therefore, the Motion is ripe for
adjudication. For the reasons stated below, the Motion is GRANTED.
BSC’s Motion arises from this court’s Order [ECF No. 11], entered on May 10,
2018, denying BSC’s first Motion to Dismiss for failure to serve a Plaintiff Fact Sheet
(“PFS”) [ECF No. 8] in compliance with Pretrial Order (“PTO”) # 175. In reaching this
decision, I relied on Wilson v. Volkswagen of America, Inc., 561 F.2d 494 (4th Cir.
1977), in which the Fourth Circuit identified four factors that a court must consider
when reviewing a motion to dismiss on the basis of noncompliance with discovery.
See Order at 4–7 (applying the Wilson factors to the plaintiffs' case).1 Concluding that
the first three factors weighed in favor of sanctions as requested by BSC, I
The Wilson factors are as follows: (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, 561 F.2d at 503–06).
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nevertheless declined to award the requested sanction of dismissal with prejudice
because it would offend the court’s duty under Wilson’s fourth factor, which is to
consider the effectiveness of lesser sanctions. In recognition of this duty, I gave the
plaintiffs a final chance to comply with the deadlines set forth in PTO # 175. I afforded
them thirty days from the entry of the Order to submit to BSC a completed PFS, with
the caveat that failure to do so may result in dismissal of their case with prejudice
upon motion by BSC. Despite this warning, the plaintiffs have again failed to comply
with this court’s orders and did not provide BSC with a completed PFS within the
thirty-day period. Consequently, BSC moved to dismiss with prejudice.
Because the less drastic sanction instituted against the plaintiffs has had no
effect on their compliance with and response to this court’s discovery orders, which
they have continued to blatantly disregard, I find that dismissing BSC with prejudice
is now appropriate. For the reasons explained in my May 10 Order, it is ORDERED
that BSC’s Motion to Dismiss [ECF No. 12] is GRANTED, and BSC is DISMISSED
with prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and to any unrepresented party.
ENTER:
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July 19, 2018
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