Hittle et al v. Ethicon, Inc., No. 2:2014cv00194 - Document 12 (S.D.W. Va. 2015)

Court Description: MEMORANDUM OPINION AND ORDER Ethicon's 11 MOTION to Dismiss With Prejudice for Failure to Serve Plaintiff Profile Form is GRANTED in part as to the dismissal of Ethicon, Inc., Ethicon, LLC, and Johnson & Johnson with prejudice, and because B oston Scientific Corp. remains as a defendant in this action, Ethicon's Motion is otherwise DENIED; it is directed that within 14 days of the entry of this order plaintiffs are to file an Amended Short Form Complaint using the Boston Scientific Corp. form and to file a Motion to Transfer MDLs. Signed by Judge Joseph R. Goodwin on 11/25/2015. (cc: counsel of record; any unrepresented party) (ts)

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Hittle et al v. Ethicon, Inc. Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION IN RE: ETHICON, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION MDL No. 2327 ______ THIS DOCUMENT RELATES TO: Hittle et al. v. Ethicon, Inc., et al. Civil Action No. 2:14-cv-00194 MEMORANDUM OPINION AND ORDER Pending before the court is a Motion to Dismiss with Prejudice filed by Ethicon, Inc., Ethicon, LLC, and Johnson & Johnson (collectively “Ethicon”). [Docket 11]. Plaintiffs have not responded, and the deadline for responding has expired. Thus, this matter is ripe for my review. Ethicon’s Motion arises from this court’s Order [Docket 10], entered on August 17, 2015, denying Ethicon’s Motion for Sanctions, including monetary penalties, dismissal and any other sanction deemed appropriate by the court, for failure to file a Plaintiff Profile Form (“PPF”) in compliance with Pretrial Order # 17. 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 [Docket 10], at 4-7 (applying the Wilson factors to the plaintiffs’ case)).1 1 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). Dockets.Justia.com Concluding that the first three factors weighed in favor of sanctions as requested by Ethicon, I nevertheless declined to award the requested sanction of $100 for each day the plaintiffs’ PPF was late 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 plaintiffs “a final chance to comply with discovery.” (Id. at 7). I afforded the plaintiffs 30 business days from the entry of the Order to submit to Ethicon a completed PPF, with the caveat that a failure to do so “will result in dismissal with prejudice upon motion by the defendant.” (Id.). Despite this warning, plaintiffs have again refused to comply with this court’s orders and did not provide Ethicon with their PPF within the 30-day period. Consequently, Ethicon moved to dismiss the case with prejudice. Because the less drastic sanction instituted against plaintiffs has had no effect on her compliance with and response to this court’s discovery orders, which they have continued to blatantly disregard, I find that dismissal with prejudice of Ethicon, Inc., Ethicon, LLC, and Johnson & Johnson is now appropriate. For the reasons explained in my August 17, 2015 Order [Docket 10], it is ORDERED that Ethicon’s Motion to Dismiss with Prejudice [Docket 11] is GRANTED in part as to the dismissal of Ethicon, Inc., Ethicon, LLC, and Johnson & Johnson with prejudice. Because Boston Scientific Corp. remains as a defendant in this action, Ethicon’s Motion is otherwise DENIED. With the dismissal of Ethicon, Inc., Ethicon, LLC, and Johnson & Johnson leaving Boston Scientific Corp. as the only remaining defendant in this action, plaintiffs are granted leave to file an Amended Short Form Complaint using the Boston Scientific Corp. form found on the court’s website at www.wvsd.uscourts.gov. In addition, plaintiffs are directed to file a Motion to Transfer MDLs, found on the court’s website under Ethicon. Both pleadings should be filed within fourteen (14) days of entry of this order. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. 2 ENTER: November 25, 2015 3

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