Nelson v. Boston Scientific Corporation
2:16-cv-07534
S.D.W. VaApr 13, 2017Background
- Plaintiff Diane Nelson filed a short-form complaint in MDL No. 2326 (Boston Scientific pelvic mesh litigation) but failed to submit the Plaintiff Profile Form (PPF) required by PTO #16.
- PTO #16, jointly drafted by leadership counsel and entered by the court, makes the PPF an interrogatory/production substitute and requires submission within 60 days of filing; failure may result in sanctions including dismissal.
- Nelson’s PPF was due October 10, 2016; as of the order (April 13, 2017) it remained unsubmitted (over 186 days late).
- BSC moved to dismiss and seek monetary sanctions under Fed. R. Civ. P. 37(b)(2); Nelson did not respond to the motion.
- The court applied the Fourth Circuit’s four-factor Wilson test (bad faith, prejudice, need for deterrence, and effectiveness of lesser sanctions) in the MDL context.
- Court denied immediate dismissal, found sanctioning authority appropriate, and gave Nelson 30 business days to submit the PPF under threat of dismissal; ordered counsel to serve Nelson by certified mail and file the receipt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal or other sanctions are warranted for failing to comply with PTO #16/produce PPF | (No response filed) | Nelson failed to comply with PTO #16; dismissal or monetary sanctions appropriate under Rule 37 | Denied dismissal now; final opportunity to comply within 30 business days or face dismissal on defendant’s motion |
| Whether plaintiff acted in bad faith in failing to submit PPF | N/A | Failure to provide updated contact/info and PPF shows disregard for court orders | Court weighed bad-faith factor against plaintiff (but not conclusively contumacious) |
| Whether defendant was prejudiced by noncompliance | N/A | Without PPF, BSC cannot develop defense; MDL management hampered | Court found prejudice favoring sanctions (diversion of resources; inability to defend) |
| Appropriate scope of sanctions in MDL context (harsh vs. lesser sanctions) | N/A | Dismissal appropriate to deter noncompliance across thousands of MDL cases | Court chose less drastic sanction: final cure period rather than immediate dismissal; lesser individualized sanctions impracticable in MDL |
Key Cases Cited
- Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88 (4th Cir.) (articulates four-factor test for harsh discovery sanctions)
- Wilson v. Volkswagen of Am., Inc., 561 F.2d 494 (4th Cir.) (source of the multi-factor sanction framework)
- In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217 (9th Cir.) (discusses MDL management, importance of standardized discovery devices like PPF)
- Link v. Wabash R.R. Co., 370 U.S. 626 (U.S.) (plaintiff responsible for ensuring counsel prosecutes case diligently)
- In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863 (8th Cir.) (failure to follow court-imposed deadlines can reflect lack of good faith)
- Freeman v. Wyeth, 764 F.3d 806 (8th Cir.) (MDL judges have greater discretion to enforce deadlines, including dismissal)