McNish v. Ethicon, Inc. et al, No. 2:2017cv03062 - Document 18 (S.D.W. Va. 2017)
Court Description: MEMORANDUM OPINION AND ORDER (Defendants' Motion to Dismiss with Prejudice or For Other Relief) The 9 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss With Prejudice or for Other Relief is GRANTED in part and DENIED in part; the plaintiff has 30 business days from the entry of this Order to pay Ethicon $1000 as minimal partial compensation for the reasonable expenses caused by the plaintiff's failure to comply with discovery; in the event that the plaintiffs do not provide adequate or timely payment, the court will consider ordering a show-cause hearing in Charleston, West Virginia, upon motion by the defendants; 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. Signed by Judge Joseph R. Goodwin on 10/20/2017. (cc: counsel of record; any unrepresented party) (mek)
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McNish v. Ethicon, Inc. et al Doc. 18 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: Esther McNish v. Ethicon, Inc., et al. Civil Action No. 2:17-cv-03062 MEMORANDUM OPINION AND ORDER (Defendants’ Motion to Dismiss with Prejudice or For Other Relief) Pending before the court is Ethicon, Inc. and Johnson & Johnson’s (collectively “Ethicon”) Motion to Dismiss with Prejudice or for Other Relief 9 (“Motion to Dismiss”) [ECF No. 9]. The plaintiff has responded to the motion [ECF No. 16] and Ethicon has replied [ECF No. 17], making it ripe for decision. For the reasons stated below, Ethicon’s Motion to Dismiss [ECF No. 9] is GRANTED in part and DENIED in part. I. Background 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 over 70,000 cases currently pending, approximately 30,000 of which are in the Ethicon, Inc. MDL, MDL 2327. 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. Pretrial Order (“PTO”) # 17, for example, ensures that Ethicon receives the plaintiff-specific information necessary to defend the cases against it. Under Dockets.Justia.com PTO # 17, each plaintiff in this MDL must submit a Plaintiff Profile Form (“PPF”) to act as interrogatory answers under Federal Rule of Civil Procedure 33 and responses to requests for production under Federal Rule of Civil Procedure 34. (See PTO # 17, In re: Ethicon, Inc., Pelvic Repair System Prods. Liab. Litig., No. 2:12-md-2327, entered Oct. 4, 2012, available at http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html). Each plaintiff must submit a PPF within 60 days of filing a Short Form Complaint. (Id. ¶ 1b). Failure to do so subjects the plaintiff “to sanctions, to be determined by the court, upon motion of the defendants.” (Id. ¶ 1i). The parties jointly drafted the requirements for PTO # 17, and I entered it as applicable to every one of the thousands of cases in this MDL. Here, the plaintiff filed her complaint on May 26, 2017, and her PPF was due to Ethicon by July 25, 2017. The plaintiff did not submit a PPF during this time period. Indeed, the plaintiff did not submit a PPF until Ethicon filed the instant motion, making the PPF more than 65 days late. Ethicon asks the court to dismiss the plaintiff’s case or, alternatively, sanction the plaintiff a reasonable monetary penalty. The plaintiff, while admitting that the PPF was untimely, insists that because the discovery deficiency has been cured and there was no bad faith, sanctions are not appropriate. II. Legal Standard Federal Rule of Civil Procedure 37(b)(2) provides that a court may issue “just orders” when a party fails to provide or permit discovery. Fed. R. Civ. P. 37(b)(2)(A). In the MDL world, this authority has particular significance. An MDL judge bears the “enormous” task of “mov[ing] thousands of cases toward resolution on the merits while at the same time respecting their individuality,” and to carry out this task in a smooth and efficient manner, the judge must establish and, more importantly, enforce rules for discovery. In re Phenylpropanolamine Prods. Liab. Litig., 2 460 F.3d 1217, 1231 (9th Cir. 2006). Rule 37(b)(2) supplies the tool for this enforcement, allowing a judge to impose sanctions when a party fails to comply with the court’s discovery orders. See id. at 1232 (“[A] willingness to resort to sanctions, sua sponte if necessary, may ensure compliance with the [discovery] management program.” (internal citation omitted)); 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.”).1 III. Discussion The circumstances of this case lead me to impose the sanction provided in Rule 37(b)(2)(C), which requires the disobeying party to pay “the reasonable expenses, including attorney’s fees, caused by the [discovery] failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). The plaintiff has not provided substantial justification for her failure to timely submit to discovery. Furthermore, there are no circumstances that make this sanction unjust. Although the discovery violation has since been cured, it nevertheless resulted in litigation expenses for Ethicon. Applying Rule 37(b)(2)(C) ensures that the disobeying party, rather than the innocent party, bears those costs. Accordingly, Ethicon’s Motion to Dismiss is DENIED in part in regard to dismissing the plaintiffs’ claim and GRANTED in part to the extent that it seeks the payment of reasonable expenses. The plaintiff’s contention that the court must apply the Wilson factors before ordering monetary sanctions is inaccurate. The Fourth Circuit Court of Appeals has directed courts to consider the Wilson factors in the case of “extreme sanction[s],” such as dismissal or judgment by default, where the “district court’s desire to enforce its discovery orders is confronted head-on by the party’s rights to a trial by jury and a fair day in court.” Mut. Fed. Sav. & Loan Ass’n v. Richards & Associates, 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)). The minor sanction ultimately ordered in this case, partial compensation of the expenses caused by the plaintiff’s discovery violation, does not raise these concerns. Therefore, I do not find it necessary to review the Wilson factors. 1 3 To bring this Motion for Sanctions, Ethicon expended time and money identifying the plaintiff as one of the non-compliant plaintiffs; assessing the effect of their discovery violations; drafting a motion to dismiss or for sanctions; serving the motion; and replying to the plaintiff’s brief in opposition. All knowledgeable MDL counsel would consider these efforts, which could have been avoided had the plaintiff followed the court’s order, to be worth $1000 at the least. Based on my understanding of the economic and administrative realities of multidistrict litigation, I conclude that a minimal representative valuation of Ethicon’s expenses is $1000. IV. Conclusion It is therefore ORDERED that the plaintiff has 30 business days from the entry of this Order to pay Ethicon $1000 as minimal partial compensation for the reasonable expenses caused by the plaintiff’s failure to comply with discovery.2 In the event that the plaintiffs do not provide adequate or timely payment, the court will consider ordering a show-cause hearing in Charleston, West Virginia, upon motion by the defendants. It is further ORDERED that Ethicon’s Motion for Sanctions [ECF No. 9] is GRANTED in part and DENIED in part. 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: October 19, 2017 2 The court directs Ethicon to communicate with plaintiffs’ leadership regarding payment instructions. 4
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