Reef v. Boston Scientific Corporation et al

Filing 18

MEMORANDUM OPINION AND ORDER granting 16 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: attys; 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:

Reef v. Boston Scientific Corporation et al.
Civil Action No. 2:16-cv-11006
MEMORANDUM OPINION AND ORDER
Pending before the court is the Defendant’s Motion to Dismiss with Prejudice
[ECF No. 16] filed by Boston Scientific Corporation (“BSC”). The plaintiff has 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. 14], entered on May 9,
2018, denying BSC’s first Motion to Dismiss for failure to serve a Plaintiff Fact Sheet
(“PFS”) [ECF No. 13] 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 plaintiff's case).1
Concluding that the first three factors weighed in favor of sanctions as requested by
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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BSC, I 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 plaintiff a final chance to comply with the deadlines set forth in PTO # 175. I
afforded her 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 her case with
prejudice upon motion by BSC. Despite this warning, the plaintiff has 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 plaintiff has had no
effect on her compliance with and response to this court’s discovery orders, which she
has continued to blatantly disregard, I find that dismissing BSC with prejudice is
now appropriate. For the reasons explained in my May 9 Order, it is ORDERED that
BSC’s Motion to Dismiss [ECF No. 16] 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