Crotwell v. Ethicon, Inc.
2:13-cv-07808
S.D.W. VaMay 15, 2018Background
- This MDL involves transvaginal mesh claims; this case is in Ethicon Wave 8 of MDL No. 2327 with ~13,000 Ethicon cases.
- PTO No. 280 required each Wave 8 plaintiff to serve a completed Plaintiff Fact Sheet (PFS) by March 19, 2018.
- Plaintiffs failed to serve a completed PFS by the deadline.
- Ethicon defendants moved to dismiss the case with prejudice under Fed. R. Civ. P. 37(b)(2) for discovery noncompliance.
- The plaintiffs did not respond to the motion; the court evaluated dismissal using the Fourth Circuit’s four-factor test (Wilson factors) in the MDL context.
- The court denied dismissal without prejudice, ordered plaintiffs to serve a completed PFS by June 14, 2018, and warned that failure to comply may result in dismissal with prejudice; plaintiffs’ counsel must send certified-mail notice to plaintiffs and file the receipt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal with prejudice is appropriate under Rule 37 for failure to serve PFS | (No response filed) Plaintiffs made no argument. | Ethicon: failure to serve PFS violates PTO, justifies dismissal with prejudice. | Denied without prejudice; court grants final chance to serve PFS by deadline. |
| Whether plaintiffs acted in bad faith | No argument; facts do not show contumacious conduct. | Ethicon: plaintiffs flagrantly ignored court orders and deadlines. | Court: conduct weighs against plaintiffs but bad faith not conclusively established. |
| Whether defendants were prejudiced by missing PFS | (No argument) | Ethicon: inability to defend and diversion of MDL resources; prejudice to other plaintiffs. | Court: prejudice exists—defendants lack essential information and MDL management is impaired. |
| Whether lesser sanctions would be effective in MDL context | (No argument) | Ethicon: sought dismissal as appropriate sanction. | Court: lesser individualized sanctions impracticable in large MDL; but final-chance dismissal warning is appropriate before prejudice dismissal. |
Key Cases Cited
- Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., 872 F.2d 88 (4th Cir. 1989) (articulates four-factor test for dismissal as discovery sanction)
- Wilson v. Volkswagen of Am., Inc., 561 F.2d 494 (4th Cir. 1977) (discusses standards for sanctions including dismissal and factors to assess)
- In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217 (9th Cir. 2006) (MDL judge’s broad case-management discretion and importance of firm schedules)
- Link v. Wabash R.R. Co., 370 U.S. 626 (1962) (plaintiff accountable for lawyer’s failures; neglect can justify dismissal)
- In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863 (8th Cir. 2007) (failure to follow court-imposed deadlines can show lack of good faith)
- Freeman v. Wyeth, 764 F.3d 806 (8th Cir. 2014) (MDL courts have greater discretion to create and enforce deadlines, including dismissal for noncompliance)