Sturgill v. C. R. Bard, Inc.

Filing 10

MEMORANDUM OPINION AND ORDER The 8 MOTION by C. R. Bard, Inc. to Dismiss With Prejudice or in the Alternative MOTION for Show Cause Order for Failure to Serve a Plaintiff Profile Form or Plaintiff Fact Sheet is GRANTED in part to the extent Bard se eks an order compelling production of the PPF and DENIED in part as to the remaining relief without prejudice; the plaintiff must serve a completed PPF on Bard on or before 3/22/2018; failure to comply with this Order will result in dismissal upon mo tion by Bard; 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 2/20/2018. (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: C.R. BARD, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL 2187

THIS DOCUMENT RELATES TO:

Sturgill v. C. R. Bard, Inc.

Civil Action No. 2:17-cv-04137

MEMORANDUM OPINION AND ORDER
Pending before the court is the Motion to Dismiss With Prejudice or in the
Alternative Motion for Show Cause Order for Failure to Serve a Plaintiff Profile Form
or Plaintiff Fact Sheet, filed by C. R. Bard, Inc. (“Bard”) on December 15, 2017
(“Motion”) [ECF No. 8]. The plaintiff has not filed a response and deadline to respond
has expired. Thus, this matter is ripe for my review. For the reasons stated below,
the Motion is GRANTED in part and DENIED in part.
I.

Background
Bard filed a motion identical to the one before the court in over one-hundred

cases. Bard moves for relief alleging that the plaintiff failed to provide a completed
Plaintiff Profile Form (“PPF”) or Plaintiff Fact Sheet (“PFS”). Specifically, Bard asks
that (1) the court dismiss the complaint with prejudice, or, in the alternative, (2) the
plaintiff be required to show cause as to her failure to provide a PPF or PFS as
directed.
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 24,000 cases currently pending, approximately 3,000 of which are in
the C. R. Bard, Inc. MDL, MDL No. 2187.
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
# 66, for example, provides that each plaintiff in cases that have been filed in,
removed to, or transferred to this MDL on or after January 9, 2013, must submit a
PPF within sixty (60) days of filing the Short Form Complaint. See Pretrial Order
(“PTO”) No. 66, In re C. R. Bard, Inc. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:10md-2187, Jan. 9, 2013, https://www.wvsd.uscourts.gov/MDL/2187/orders.html. PTO #
66 also suspended each plaintiff ’s PFS obligations then current, deadlines that
generally are now dictated by Docket Control Orders entered in each individual case.
Thereafter, I imposed a filing requirement on the PPFs and the PFSs, directing
each plaintiff to file with the Clerk of the court in that plaintiff ’s individual case a
complete copy of the PPF and PFS. See PTO No. 253. In all cases filed on or before
March 1, 2017, the court directed each plaintiff to file with the Clerk of court a PPF
by June 15, 2017. See id. In all cases filed after March 1, 2017, the court only
augmented each plaintiff ’s submission requirement – within sixty days of filing the
Short Form Complaint – with the obligation to file their PPF and PFS with the Clerk
of court when due. Id.
Before I conduct this analysis, I note that this case was selected to become part
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of “Bard Wave 7”—a collection of cases subjected to the same scheduling deadlines,
rules governing motions practice and discovery. Pursuant to the terms of the Docket
Control Order establishing this “wave” of cases, the plaintiff has until March 19, 2018
to submit her PFS. Therefore, the court will consider the Motion only to the extent it
seeks relief related to the plaintiff ’s failure to submit or file her PPF timely.
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 four Wilson factors as 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.

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
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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
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
According to Bard, the plaintiff has failed to timely submit a PPF within the

court-ordered timeframe, in violation of PTO # 66. The plaintiff did not file an
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opposition contesting Bard’s assertions. According to the record in this case, the
plaintiff has also neglected to file a PPF entirely, in violation of PTO # 253.
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 has
not responded. This indicates a failing on the part of the plaintiff, who has an
obligation to provide counsel with any information needed to prosecute this 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 # 3, “[a]ll attorneys
representing parties to this litigation . . . bear the responsibility to represent their
individual client or clients.” PTO No. 3, at ¶ F. This includes awareness of and good
faith attempts at compliance with all PTOs and other court orders. PTO # 66, which
was drafted by the leadership counsel of both parties jointly, expressly states that
any plaintiff who fails to comply with PPF obligations may, for good cause shown, be
subject to sanctions. The plaintiff 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
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
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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 PPF, 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 attention away from dutiful plaintiffs
and onto this case, the delay has influenced the progress of the remaining plaintiffs
in MDL 2187 unfairly.
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 Bard’s counsel, a
considerable number of plaintiffs have failed to supply a PPF timely. 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 plaintiff. However, application of the fourth factor—the effectiveness
of less drastic sanctions—counsels against the relief sought by Bard. Rather than
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imposing harsh sanctions at this time, the court opts for a lesser sanction and allows
the plaintiff one more chance to comply, subject to dismissal with prejudice, upon
motion by Bard, if the plaintiff fails to do so. This course of action is consistent with
PTO # 66, which warned the plaintiff of the possibility of dismissal upon failure to
submit a PPF timely.
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 thousands of 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 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 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 Motion to Dismiss With Prejudice or in the Alternative

Motion for Show Cause Order for Failure to Serve a Plaintiff Profile Form or Plaintiff
Fact Sheet is GRANTED in part to the extent Bard seeks an order compelling
production of the PPF and DENIED in part as to the remaining relief without

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prejudice.
It is further ORDERED that the plaintiff must serve a completed PPF on Bard
on or before March 22, 2018. Failure to comply with this Order will result in dismissal
upon motion by Bard. Finally, it is ORDERED that plaintiff’s counsel send a copy of
this Order to the plaintiff 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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February 20, 2018