Snow v. Boston Scientific Corporation
Filing
14
MEMORANDUM OPINION AND ORDER granting 11 MOTION by Boston Scientific Corporation to Dismiss With Prejudice, as more fully set forth herein; BSC is DISMISSED with prejudice. Signed by Judge Joseph R. Goodwin on 3/26/2018. (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:
BOSTON SCIENTIFIC CORP.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2326
______
THIS DOCUMENT RELATES TO
Donita Snow v. Boston Scientific Corporation
Civil Action No. 2:17-cv-00704
MEMORANDUM OPINION AND ORDER
Pending before the court is Defendant's Motion to Dismiss [ECF No. 11] filed
by Boston Scientific Corporation (“BSC”). The plaintiff has responded [ECF No. 12],
and the matter is ripe for my review. For the reasons stated below, the motion is
GRANTED.
BSC’s Motion arises from this court’s Order [ECF No. 9], entered on August
28, 2017, denying BSC’s first Motion to Dismiss for failure to serve a Plaintiff Fact
Sheet (“PFS”) [ECF No. 7] in compliance with Pretrial Order (“PTO”) # 165. 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 4–6 (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).
1
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 # 165. 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 August 28, 2017 Order, it is
ORDERED that BSC’s Motion to Dismiss [ECF No. 11] 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:
2
March 26, 2018
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