Hager v. C. R. Bard, Inc.
2:17-cv-00766
| S.D.W. Va | Feb 20, 2018Background
- Plaintiff filed Hager v. C.R. Bard, Inc. in MDL No. 2187 (transvaginal mesh litigation); plaintiff failed to serve a Plaintiff Profile Form (PPF) and did not oppose Bard’s motion to dismiss or show cause.
- PTO No. 66 required plaintiffs who filed on/after Jan. 9, 2013 to submit a PPF within 60 days of filing the Short Form Complaint; PTO No. 253 required filing the PPF/PFS with the Clerk.
- This case was part of “Bard Wave 7”; plaintiff’s PFS deadline remained March 19, 2018, so the court limited consideration to the PPF delinquency.
- Bard moved to dismiss with prejudice or, alternatively, for a show-cause order for failure to serve a PPF/PFS. Plaintiff did not respond.
- Applying Rule 37(b)(2) and the Fourth Circuit’s Wilson factors, the court found noncompliance that justified sanctioning but declined immediate dismissal, giving plaintiff a final opportunity to serve a PPF.
- Court ordered plaintiff to serve a completed PPF on Bard by March 22, 2018 and required plaintiff’s counsel to mail the order to the plaintiff by certified mail; failure to comply would permit dismissal on Bard’s motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for failure to serve a PPF is warranted under Rule 37 | (No response filed) | Bard: dismissal with prejudice or show-cause because plaintiff failed to comply with PTOs | Court denied immediate dismissal; compelled production and gave final deadline (dismissal available if missed) |
| Whether plaintiff acted in bad faith such that harsh sanctions are appropriate | (No response; no evidence offered of excuse) | Bard: failure to comply was blatant and warrants sanction | Court: facts weigh against plaintiff on bad-faith factor but not clearly contumacious; one more chance given |
| Whether defendant was prejudiced by lack of PPF | Plaintiff did not contest prejudice | Bard: cannot defend without PPF; diversion of resources and delay for other MDL plaintiffs | Court: found prejudice to Bard and MDL management supports sanctioning posture |
| Appropriate level of sanction (dismissal vs lesser sanctions) | (No position presented) | Bard sought dismissal; alternatively show-cause | Court: less drastic sanction (final chance with dismissal if noncompliant) is adequate given MDL realities; other individualized sanctions impracticable |
Key Cases Cited
- Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88 (4th Cir.) (articulates Wilson factors for Rule 37 sanctions)
- Wilson v. Volkswagen of Am., Inc., 561 F.2d 494 (4th Cir.) (establishes multi-factor sanction analysis)
- In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217 (9th Cir.) (discusses MDL-management imperatives and the need for firm schedules)
- Link v. Wabash R.R. Co., 370 U.S. 626 (U.S.) (plaintiff responsible for counsel’s diligent prosecution)
- In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863 (8th Cir.) (failure to follow court deadlines can show lack of good faith)
- Freeman v. Wyeth, 764 F.3d 806 (8th Cir.) (MDL judges given greater discretion to create and enforce deadlines)