Jeff v. Mentor Worldwide LLC et al

Filing 10

MEMORANDUM OPINION & ORDER The 6 MOTION by Coloplast Corp., Mentor Worldwide LLC to Compel or in the Alternative to Dismiss is GRANTED in part to the extent Coloplast seeks an order compelling production of the PFS and DENIED in part and without pr ejudice as to the remaining relief; the plaintiffs must serve their completed PFS on Coloplast on or before 9/14/2017; 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 8/15/2017. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE:

COLOPLAST CORP.
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2387

THIS DOCUMENT RELATES TO:

Debra Jeff, et al. v. Coloplast Corp.

Civil Action No. 2:16-cv-09436

MEMORANDUM OPINION & ORDER
Pending before the court is Coloplast Corp.’s (“Coloplast”) Motion to Compel
and in the Alternative to Dismiss [ECF No. 8]. 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, Coloplast’s Motion [ECF No. 8] is GRANTED in part and
DENIED in part.
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 seven MDLs, there are
approximately 47,000 cases currently pending, approximately 200 of which are in the
Coloplast MDL, MDL 2387.
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
Coloplast Wave 3. PTO # 123, at 15 [ECF No. 4].
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”) # 126, for example, provides that each plaintiff in Wave 3 must
submit a Plaintiff Fact Sheet (“PFS”). See PTO # 126, at 1 [ECF No. 1276], In re

Coloplast Corp., Pelvic Support Sys. Prods. Liab. Litig. , No. 2:12-md-002387. The
plaintiffs, however, did not comply with PTO # 126 in that they wholly failed to
submit a completed PFS, and on this basis, Coloplast now seeks an order compelling
production of a PFS within five days, dismissing the case with prejudice if the
plaintiffs fail to comply; dismissing the case with prejudice without an opportunity to
comply; or an award of $100 per day from the date of the PFS deadline until the
plaintiffs serve a PFS.
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

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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)).
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”).

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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. 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 # 126, each plaintiff was ordered to complete and serve a PFS

on Coloplast by May 20, 2017. PTO # 126, at 1. Although all other deadlines for
Coloplast Wave 3 were stayed, the PFS due date of May 20 remained in place. See id.
According to Coloplast, the plaintiffs failed to submit a PFS within the courtordered deadline. As of the date of this Order, the plaintiffs have not submitted a
PFS, making it more than 93 days late. Accordingly, pursuant to PTO # 126,
Coloplast now moves for dismissal and reasonable sanctions against the plaintiffs.
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

4

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 plaintiffs’ counsel
has not responded. However, 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 their case,
including up-to-date 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 # 2, “[a]ll attorneys representing parties to this
litigation . . . bear the responsibility to represent their individual client or clients.”
PTO # 2 , at ¶ E [ECF No. 10], In re Coloplast Corp., Pelvic Support Sys. Prods. Liab.

Litig., No. 2:12-md-002387, available at http://www.wvsd.uscourts.gov/MDL/2387/or
ders.html). This includes awareness of and good faith attempts at compliance with
all PTOs and other court orders. Pretrial Order # 12, which was jointly drafted by the
leadership counsel of both parties, expressly states any plaintiff who fails to comply
with PFS obligations, may for good cause shown, be subject to sanctions. PTO # 12,
at ¶ 2(d)1 [ECF No. 40], In re Coloplast Corp., Pelvic Support Sys. Prods. Liab. Litig.,
No. 2:12-md-002387. 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

Pretrial Order # 105 subsequently amended PTO # 12; however the language in section 2(d) was
not affected. See PTO # 105 [ECF No. 572].
1

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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, Coloplast 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 Coloplast has had to divert its attention away from timely
plaintiffs and onto the Jeffs, the delay has unfairly impacted the progress of the
remaining plaintiffs in MDL 2387.
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 Coloplast’s counsel, a
considerable number of plaintiffs have failed to supply Coloplast with a timely PFS.
In fact, of the motions filed by Coloplast to date, the majority of these plaintiffs,
including the Jeffs, have failed to supply a PFS 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

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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 the
defendants. Rather than imposing harsh sanctions at this time, the court opts for a
lesser sanction and allows the plaintiffs one more chance to comply with PTO # 126
subject to dismissal, upon motion by the defendant, if she fails to do so. This course
of action is consistent with PTO # 12, which warned plaintiffs of the possibility of
dismissal upon failure to submit a timely PFS. See PTO # 12 ¶ 1(i).
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 200 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 Coloplast. 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 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

7

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 Coloplast’s Motion to Compel and in the Alternative to

Dismiss [ECF No. 8] is GRANTED in part to the extent Coloplast seeks an order
compelling production of the PFS and DENIED in part and without prejudice as to
the remaining relief. It is further ORDERED that the plaintiffs must serve their
completed PFS on Coloplast on or before September 14, 2017. 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:

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August 15, 2017