Atencio et al v. Boston Scientific Corporation

Filing 9

MEMORANDUM OPINION & ORDER The 6 MOTION by Boston Scientific Corporation to Dismiss With Prejudice is DENIED without prejudice; the plaintiff must serve her completed PFS on BSC on or before 6/11/2018; failure to comply with this Order may result in dismissal with prejudice upon motion by BSC; 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 5/10/2018. (cc: counsel of record; any unrepresented party) (st)

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:

Atencio et al v. Boston Scientific Corporation

Civil Action No. 2:16-cv-08829

MEMORANDUM OPINION & ORDER
Pending before the court is the Defendant’s Motion to Dismiss with Prejudice
[ECF No. 6] filed by Boston Scientific Corporation (“BSC”). 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, the Motion is DENIED without prejudice.
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 20,000 cases currently pending, approximately 3900 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
plaintiffs, however, did not comply with PTO # 175 in that they wholly failed to
submit a completed PFS, and on this basis, BSC now seeks dismissal of their case
with prejudice.
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.
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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)).
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, containing thousands of individual cases in
the aggregate, 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
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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. 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 # 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 plaintiffs failed to submit a completed PFS within the court-ordered deadline.
Accordingly, pursuant to PTO # 175, BSC now moves for dismissal of the plaintiffs’
case with prejudice.
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 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 the plaintiffs have
not responded. This indicates a failing on the part of the plaintiffs, who have an
obligation to provide counsel with any information needed to prosecute their case. 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 # 2, “[a]ll attorneys

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representing parties to this litigation . . . bear the responsibility to represent their
individual client or clients.” PTO # 4, at ¶ C [ECF No. 103], 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. 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 any plaintiff who fails to comply with PFS obligations may, for good cause
shown, be subject to sanctions. PTO # 16, at ¶ 2(d) [ECF No. 211], 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. The plaintiffs nevertheless
failed to comply. Although this failure does not appear to be callous, the fact that it
was 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.”).
The second factor—prejudice caused by noncompliance—also leans toward the
order of sanctions. Without a PFS, defendants are “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 attention away from timely plaintiffs

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and onto this case, the delay has unfairly impacted the progress of the remaining
plaintiffs in MDL 2326.
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 a timely PFS. 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).
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 BSC.
Rather than imposing harsh sanctions at this time, the court opts for a lesser sanction
and allows the plaintiffs one more chance to comply, subject to dismissal, upon motion
by the defendant, if they fail 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 PFS. See PTO # 16, at ¶ 2(d).

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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 approximately 3900 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 defendants. Therefore, considering the administrative and economic
realities of multidistrict litigation, I conclude that affording the plaintiffs a final
chance to comply with discovery, subject to dismissal if they fail 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, 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 the Defendant’s Motion to Dismiss with Prejudice [ECF

No. 6] is DENIED without prejudice. It is further ORDERED that the plaintiffs must
serve their completed PFS on BSC on or before June 11, 2018. Failure to comply with
this Order may result in dismissal with prejudice upon motion by BSC. 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.

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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:

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May 10, 2018