DeTro v. C. R. Bard, Inc.

Filing 10

ORDER denying 9 MOTION by C. R. Bard, Inc. for Order to Show Cause for Plaintiff Lollie Detro's Failure To Comply With Pretrial Order #40, #244 and Incorporated Brief In Support; the plaintiff has 30 days from the entry of this Order to submit to Bard a completed PFS with verifications and authorizations. Signed by Judge Joseph R. Goodwin on 6/16/2017. (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: C. R. BARD, INC.
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL NO. 2187

THIS DOCUMENT RELATES TO:
Lollie DeTro v. C. R. Bard, Inc.

Civil Action No. 2:16-cv-10411

MEMORANDUM OPINION & ORDER
Pending before the court is defendant C. R. Bard, Inc.’s (“Bard”) Motion for Order to Show
Cause for Plaintiff Lollie DeTro’s Failure To Comply With Pretrial Orders # 40 and # 244
(“Motion to Dismiss”). [ECF No. 9]. The plaintiff has not responded, and the deadline for
responding has expired. Thus, this matter is ripe for my review. For the reasons stated below,
Bard’s Motion [ECF No. 9] 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 approximately 60,000 cases
currently pending, over 4,000 of which are in the Bard MDL, MDL 2187. Managing multidistrict
litigation (“MDL”) 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’
responsibilities.
Pretrial Order (“PTO”) # 244 provides that plaintiffs in 332 cases in this MDL, including
this case, were required to submit a Plaintiff Fact Sheet (“PFS”) on or before April 3, 2017. See

PTO # 244 at ¶ A, No. 2:10-md-2187, entered Mar. 3, 2017 [ECF No. 3131]. Here, the plaintiff
failed to submit a completed PFS and Bard now moves for sanctions against the plaintiff for failure
to comply with PTO # 244.1 Specifically, Bard seeks dismissal of the plaintiff’s 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. The dismissal of an action is an example of a possible sanction
under this rule. Before employing this severe sanction, however, a court must balance the
competing interests of the “court’s desire to enforce its discovery orders,” on the one hand, and
“the [plaintiff’s] rights to a trial by jury and a fair day in court,” on the other. Mut. Fed. Sav. &
Loan v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir. 1989). The Fourth Circuit has identified
four factors for the court to consider when confronting a motion to dismiss under Rule 37:
(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.
Id. (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

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Bard also moves for sanctions against the plaintiff due to her failure to communicate with Bard to schedule her
deposition. While PTO # 40 provides that the plaintiff must make a good faith effort to coordinate the scheduling of
depositions, PTO # 244 sets the deposition deadline as August 11, 2017. Thus, this argument is premature. Bard may
seek relief through a motion to compel the plaintiff to comply with PTO # 40.

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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 and
administered 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. Id. 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 # 244, the plaintiff was required to submit a completed PFS by April 3,

2017. The purpose of the PFS, as was the case in In re Phenylpropanolamine, is “to give each
defendant the specific information necessary to defend the case against it . . . [because] 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. As
of the date of this Order, the plaintiff has not submitted a PFS, making it 75 days late.

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Bard asks the court to dismiss the plaintiff’s case with prejudice. The plaintiff did not
respond to Bard’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 plaintiff 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 plaintiff did not respond.
The plaintiff, who is represented by counsel, failed to comply with PTO # 244 by timely submitting
a PFS, failed to respond to Bard’s motion to dismiss, and as of today have provided no indication
that she intends to submit a PFS. The fact that these failures were blatant and in full knowledge of
the court’s orders and discovery deadlines leads me to weigh the first factor against the plaintiff.
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, Bard 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 Bard has had to divert its attention
away from timely plaintiffs and onto this case the delay has unfairly affected the progress of the
remaining plaintiffs in MDL 2187.
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. In

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addition, 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).
In Application of the first three factors demonstrates that this court is justified in
sanctioning the plaintiff. However, application of the fourth factor—the effectiveness of less
drastic sanctions—counsels against the relief sought by Bard. Rather than imposing harsh
sanctions at this time, the court opts for a lesser sanction and allows the plaintiff one more chance
to comply with PTO # 244 subject to dismissal with prejudice, upon motion, if she fails to do so.
Alternative lesser sanctions, such as the ones outlined in Rule 37(b)(2)(i–iv), are
impracticable, and therefore ineffective, in the context of an MDL containing over 4,000 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 Bard. Therefore, considering the administrative and economic realities of
multidistrict litigation, I conclude that affording the plaintiff a final chance to comply with
discovery, subject to dismissal with prejudice 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 Rules “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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IV.

Conclusion
It is ORDERED that Bard’s Motion to Dismiss [ECF No. 9] is DENIED. It is further

ORDERED that the plaintiff has 30 days from the entry of this Order to submit to Bard a
completed PFS with verifications and authorizations. The plaintiff is reminded that the PFS and
other

forms

relevant

to

participating

in

this

MDL

are

available

at

http://www.wvsd.uscourts.gov/MDL/2187/forms.html. Information on where to submit the PFS is
also available on the court’s website. Failure to comply with this Order may result in dismissal
with prejudice upon motion by Bard.
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 16, 2017