Davis et al v. Boston Scientific Corporation, No. 2:2016cv06254 - Document 28 (S.D.W. Va. 2018)

Court Description: MEMORANDUM OPINION AND ORDER The 22 MOTION by Boston Scientific Corporation to Dismiss With Prejudice is GRANTED and BSC is DISMISSED with prejudice. Signed by Judge Joseph R. Goodwin on 11/16/2018. (cc: counsel of record; any unrepresented party) (mek)

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Davis et al v. Boston Scientific Corporation Doc. 28 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: Davis et all v. Boston Scientific Corporation Civil Action No. 2:16-cv-06254 MEMORANDUM OPINION AND ORDER Pending before the court is the Defendant’s Motion to Dismiss with Prejudice [ECF No. 22] filed by Boston Scientific Corporation (“BSC”). The plaintiffs have responded. [ECF No. 23]. 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. 12], entered on May 17, 2018, denying BSC’s first Motion to Dismiss for failure to serve a Plaintiff Fact Sheet (“PFS”) [ECF No. 8] 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 plaintiffs' case).1 Concluding that the first three factors weighed in favor of sanctions as requested by BSC, I 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 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 plaintiffs a final chance to comply with the deadlines set forth in PTO # 175. I afforded them 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 their case with prejudice upon motion by BSC. Despite this warning, the plaintiffs have 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 plaintiffs has had no effect on their compliance with and response to this court’s discovery orders, which they have continued to blatantly disregard, I find that dismissing BSC with prejudice is now appropriate. For the reasons explained in my May 17 Order, it is ORDERED that BSC’s Motion to Dismiss [ECF No. 22] 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 November 16, 2018

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