Wittman et al v. C. R. Bard, Inc. et al

MEMORANDUM OF LAW

S.D.W. Va.July 30, 2018

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION IN RE: C. R. BARD, INC. PELVIC REPAIR SYSTEM PRODUCTS MDL No. 2187 LIABILITY LITIGATION JOSEPH R. GOODWIN THIS DOCUMENT RELATES TO: U.S. DISTRICT JUDGE JOANNA PETRIS CASE NO.: 2:16-cv-10794 EXPEDITED BRIEFING REQUESTED DEFENDANT C. R. BARD, INC.’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS FOR FAILURE TO COMPLY WITH PTO 275 AND PTO 283, OR IN THE ALTERNATIVE, FOR PLAINTIFF TO SHOW CAUSE FOR HER FAILURE TO COMPLY, AND REQUEST FOR EXPEDITED BRIEFING AND RULING ON THIS MOTION AND EXTENSION OF BARD’S EXPERT-RELATED DEADLINES PENDING A RULING BY THIS COURT Defendant C. R. Bard, Inc. (“Bard”) submits this Memorandum of Law in Support of Its Motion to Dismiss For Failure to Comply with PTO 275 and PTO 283, or in the alternative for Plaintiff to Show Cause For Their Failure to Comply, and Request for Expedited Briefing or Ruling on This Motion and Extension of Bard’s Expert-Related Deadlines Pending a Ruling By This Court (“Motion”). I. REQUEST FOR EXPEDITED BRIEFING AND/OR RULING As noted in its Motion, PTO 283 set a deadline of July 13, 2018, for the service of this Plaintiff’s expert disclosures and reports and a deadline of August 13, 2018, for the service of Bard’s expert disclosures and reports. PTO 283 (Dkt. 6015). As with the original deadline for expert reports in PTO 275, the failure of a significant percentage of Plaintiffs in this Wave to disclose experts requires the filing of this Motion and a number of similar motions. With Bard’s August 13, 2018, expert disclosure/report deadline rapidly approaching, to prevent undue prejudice to Bard, Bard requests that the Court order an expedited briefing schedule requiring : a) Plaintiff to respond to this Motion within seven (7) days of its Case 2:16-cv-10794 Document 106 Filed 07/30/18 Page 1 of 12 PageID #: 586 2 filing, and b) Bard to reply within two (2) business days of Plaintiff’s response. II. REQUEST FOR IMMEDIATE ORDER STAYING AND/OR EXTENDING BARD’S EXPERT-RELATED DEADLINES PENDING A RULING ON THIS MOTION Expert testimony is essential to the pursuit of any product liability case. See discussion in Section IV below. Without the ability to offer expert testimony through retained or non-retained experts on any issue as to which Plaintiff will bear the burden of proof at trial, she cannot make out a prima facie case for any asserted claim. The Court’s imposition of deadlines for Plaintiff to name experts before Bard does recognizes this fact and allows an opportunity for the Court to dismiss cases at this juncture based on non- compliance. Here, Plaintiff’s failure of to comply with her obligation to serve expert reports and/or disclosures as required in both PTOs 275 and 283 has not only shown that Plaintiff cannot sustain any claim but has impaired Bard’s ability to prepare its own expert disclosures and reports, resulting in unfair prejudice to Bard. See discussion in Sections III-IV below. Because Plaintiff’s failure to comply with PTOs 275 and 283 and relevant state law warrants the dismissal of Plaintiffs’ claims, Bard should not be required to incur the trouble and expense of preparing expert reports and disclosures in cases that may ultimately be dismissed with prejudice. Bard therefore respectfully requests that this Court issue an immediate order staying and/or extending Bard’s expert-related deadlines set forth in PTO 283 until such time as this Court rules on this Motion. III. FACTUAL AND PROCEDURAL BACKGROUND On January 30, 2018, more than five months ago, this Court established deadlines for pretrial proceedings for all Wave 7 cases pursuant to PTO 275. (Dkt. 5124). Similar Waves Orders were entered in the Boston Scientific, Ethicon, and American Medical Systems MDL proceedings. According to the discovery schedule established by PTO 275 and the comparable PTOs entered in the other mesh MDLs pending before this Court, Plaintiffs were originally required to serve expert disclosures and reports on or before June 4, 2018. After a number of Plaintiffs Case 2:16-cv-10794 Document 106 Filed 07/30/18 Page 2 of 12 PageID #: 587 3 failed to meet that deadline or designated more than five retained experts, the Court issued PTO 283 in this MDL 2187 and comparable pretrial orders in the other mesh MDLs pending before this Court,1 which adjusted certain deadlines and clarified the number of experts each party was permitted to disclose. (Dkt. 6015). Pursuant to the new expert deadlines set forth in PTO 283, Plaintiffs were required to serve expert disclosures and/or reports on or before July 13, 2018, and Bard is now required to serve its expert disclosures and reports on or before August 13, 2018. Despite the additional time afforded by the Court in PTO 283, Plaintiff (and a significant number of other Wave 7 Plaintiffs) failed to serve any expert disclosures of reports. The time for Plaintiff to disclose her retained and non-retained experts passed more than ten days ago (and more than seven weeks since the original deadline). This continued non-compliance cannot be cured and should not be tolerated. Consistent with the Court’s admonition in PTO 283 that no further extensions would be granted, Plaintiff’s flaunting of critical Court deadlines should result in the dismissal of her case with prejudice. IV. ARGUMENT A. Plaintiff’s Claims Should Be Dismissed For Failure to Comply With PTO 275 and PTO 283 Pursuant to Fed. R. Civ. P. 41(b) or 37(b). As noted above, PTOs 275 and 283 established specific deadlines for expert disclosures, including a staggered expert disclosure time for Plaintiffs and Bard. Because this is the seventh wave of cases set for case-specific discovery in this MDL, and the initial schedule for expert disclosures and reports was established via PTO 275 over five months ago, the need to procure expert testimony, and the timetable within which to do so, should not have come as any surprise to Plaintiff. 1 See, e.g., Boston Scientific PTO 187 (Dkt. 6100); Ethicon PTO 303 (Dkt. 6021); AMS PTO 255 (Dkt. 6101). Case 2:16-cv-10794 Document 106 Filed 07/30/18 Page 3 of 12 PageID #: 588 4 In both PTO 275 and PTO 283, the Court clearly stated: “It shall be the responsibility of the parties to review and abide by all pretrial orders previously entered by the court.” See PTO 275, at 8; PTO 283, at 9. Plaintiff failed to do so with respect to the expert reports and disclosures at issue in this Motion. Indeed, to date, Plaintiff has wholly failed to comply with this Court’s Order and has yet to serve Defendant with a Plaintiff Fact Sheet. Where, as here, a plaintiff fails “to prosecute or to comply with . . . a court order, a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). Unless the dismissal order states otherwise, “the dismissal operates as adjudication on the merits.” See Fed. R. Civ. P. 41(b). Under Fed. R. Civ. P. 37(b), in turn, sanctions are appropriate when “a party . . . fails obey an order to provide discovery . . . .” Fed. R. Civ. P. 37(b)(2)(A). In an MDL proceeding such as this where this case has been pending for approximately two years, the most appropriate sanction is “dismissing the action or proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(v); see also In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1232 (9th Cir. 2006) (MDL judge “must establish schedules with firm cutoff dates if the coordinated cases are to move in a diligent fashion toward resolution by motion, settlement, or trial” and a willingness to resort to sanctions in the event of noncompliance may result in the better administration of the vehicle of multidistrict litigation); Fed. R. Civ. P. 1 (the Federal Rules should be construed and administered to “secure the just, speedy, and inexpensive determination of every action and proceeding.”). Factors that a court must consider before levying a sanction of dismissal include the following: (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 Case 2:16-cv-10794 Document 106 Filed 07/30/18 Page 4 of 12 PageID #: 589 5 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 v. Volkswagen of Am., Inc., 561 F.2d 494, 503-506 (4th Cir. 1977)). In multidistrict litigations such as this one, courts must also be given greater discretion to create and enforce deadlines “in order to administrate the litigation effectively” and “ensure that the engine remains in tune.” Freeman v. Wyeth, 764 F.3d 806, 810 (8th Cir. 2014); In re Phenylpropanolamine, 460 F.3d at 1232. Through this multidistrict litigation, the Court has set aggressive discovery schedules to work up cases and ready them for remand and trial as quickly and efficiently as possible. In Wave 7, in particular, this Court designated a very large number of cases for work up with a tight deadline for completing fact and expert discovery. In many of these cases, Bard has had to file motions with respect to Plaintiffs who have not provided Bard with their Plaintiff Fact Sheets and court-ordered authorizations, thereby depriving Bard of key data needed to prepare its Defendant Fact Sheets and expert disclosures/reports.2 This is one of those cases.3 In addition, in many of the remaining Wave 7 cases, Bard has had difficulty obtaining the full cooperation of Plaintiffs’ counsel in the scheduling of necessary depositions of Plaintiffs and/or their treaters, again impacting Bard’s ability to provide its experts with all of the data needed to prepare their case-specific expert reports. This pattern of resisting discovery and ignoring Court orders makes it clear that Plaintiff does not intend to move forward in this case. Without expert testimony, she cannot. 2 The majority of these motions were filed in May 2018, and this Court ruled on some, but not all, of these motions in June 2018. 3 Plaintiff did not respond or oppose Bard’s motion to dismiss for failure to serve a Plaintiff Fact Sheet. To date, Bard has not received a Plaintiff Fact Sheet from Plaintiff. Case 2:16-cv-10794 Document 106 Filed 07/30/18 Page 5 of 12 PageID #: 590 6 Here, Plaintiff violated PTOs 275 and 283 by failing to submit expert disclosures and reports by the deadlines set forth in these Court orders. Plaintiff’s violation of PTO 283 is inexcusable given two indisputable facts. First, the Court granted all plaintiffs who did not initially comply with the expert disclosure and report deadlines set forth in PTO 275 an additional five weeks to prepare and serve these expert disclosures and reports to Bard. Cf. PTO 275, at 2 with PTO 283, at 1, 3. Second, in PTO 283, this Court gave all plaintiffs advance warning that “there will be no further modification of deadlines.” See PTO 283, at 1. Thus, Plaintiff was on notice that failing to comply with this extended deadline would not be tolerated by the Court. Still, Plaintiff failed to serve her expert disclosures and reports by the extended deadline, thereby supporting a conclusion that Plaintiff has failed to act in good faith. See Wilson, 561 F.2d at 503-506. See also Link v. Wabash R.R. Co., 370 U.S. 626, 634 n.10 (1962) (holding dismissal appropriate if plaintiff “failed to see to it that his lawyer acted with dispatch in the prosecution of his lawsuit”); In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867 (8th Cir. 2007) (concluding plaintiffs did not act in good faith based on blatant disregard for deadlines and procedures imposed by the MDL court). Bard has been and continues to be prejudiced by Plaintiffs’ failure to comply with her obligations under PTO 275 and PTO 283. First, without Plaintiff’s expert disclosures and reports, Bard does not know what causation and other opinions Plaintiff may attempt to offer at the trial of this case, and Bard’s experts cannot prepare responsive reports without this information. Second, Bard cannot focus its fact discovery to address Plaintiff’s asserted claims without knowing what expert evidence, if any, Plaintiff will attempt to offer in support. Third, Bard’s ability to complete necessary depositions and file dispositive motions will be hampered if Plaintiff is allowed to ignore the deadlines set forth in these pretrial orders and later surprise Case 2:16-cv-10794 Document 106 Filed 07/30/18 Page 6 of 12 PageID #: 591 7 Bard with late-served disclosures and/or expert reports. And, finally, Bard will be unfairly prejudiced if it is required to incur the trouble and expense of preparing its own expert disclosures and reports in cases that should, by law, be dismissed for Plaintiff’s failure to support their claims with expert testimony. See, e.g., Demmler v. SmithKline Beecham Corp., 671 A.2d 1151, 1155 (Pa. Super. 1996) (holding plaintiff’s “theory required a showing by expert testimony that [defendant’s] warning to the medical community was inadequate”); Dion v. Graduate Hosp., 520 A.2d 876, 881 (Pa. Super. 1987) (“expert testimony is required to determine whether the drug manufacturer’s warning to the medical community is adequate”); Soufflas v. Zimmer, Inc., 474 F. Supp. 2d 737, 751 (E.D. Pa. 2007) (granting summary judgment where plaintiff lacked expert testimony on causation); Webb v. Tahsin Indus. Corp., No. 4:14-CV-01499, 2016 WL 454821, at *2 (M.D. Pa. Feb. 5, 2016) (“expert testimony is required to prove liability in a failure to warn claim as a matter of law”); Burton v. Danek Medical, Inc., 1999 WL 118020, at *8 (E.D. Pa. Mar. 1, 1999) (finding summary judgment appropriate because “Plaintiffs have not offered any expert who would testify” on the issues of causation). See also Lewis v. Ethicon, Inc., 601 F. App’x 205, 212 (4th Cir. 2015) (affirming directed verdict where plaintiff lacked expert proof of causation to support her prima facie case); In re Mirena IUD Prods. Liab. Litig., 202 F. Supp. 3d 304, 312 (S.D.N.Y 2016) (granting summary judgment to defendant in products liability case due to a plaintiff’s lack of expert causation evidence) (collecting cases at n.13). Dismissal with prejudice is the appropriate sanction for Plaintiff’s noncompliance with PTO 275 and PTO 283. See In re Phenylpropanolamine, 460 F.3d at 1232. Given the large number of cases in Wave 7, the previous extension granted by this Court, and its warning that further extensions of expert deadlines will not be granted after the issuance of PTO 283, a lesser sanction is inappropriate and will not deter Plaintiff’s continuing non-compliance with this Court’s orders. As this Court has noted in many of its prior orders, this Court’s resources are Case 2:16-cv-10794 Document 106 Filed 07/30/18 Page 7 of 12 PageID #: 592 8 already stretched to the limit in handling the thousands of cases that still remain in this MDL and the other MDLs before it. Plaintiff was given the benefit of doubt in connection with her initial non-compliance with PTO 275 when this Court entered PTO 283 granting her an additional month to submit her expert disclosures and reports. Despite being given this additional time and despite the Court’s warning in PTO 283 that no more extensions would be granted, Plaintiff still failed to submit the required disclosures and reports, thereby justifying the dismissal of this cases pursuant to Federal Rules of Civil Procedure 41(b) and 37(b), the case law cited above, and the Court’s inherent discretion to control its docket. B. The Court Should Not Allow Plaintiffs An Additional Extension of the Deadline to Serve Expert Disclosures and Reports. As noted above, case management is critically important in litigation of this magnitude that has been ongoing for years, and this Court has substantial discretion to manage discovery and set deadlines that will help secure “the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1; see also Freeman v. Wyeth, 764 F.3d at 810; In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d at 1232. Here, Bard urges that the expert deadlines set forth in PTO 283 be enforced, because allowing Plaintiff additional time to submit her expert materials-especially when a prior extension of time with concomitant a warning that no further extensions would be granted-would likely be futile and would essentially reward Plaintiff for her continuing violations of this Court’s orders. Simply put, there is no factual or legal basis for giving Plaintiff a third bite at the apple at this late stage of the discovery process. If Plaintiff was unwilling or unable to serve her expert disclosures and reports by the July 13, 2018, deadline, despite the additional time afforded by PTO 283, then there is no reason to expect that a further extension of time will elicit her compliance. Case 2:16-cv-10794 Document 106 Filed 07/30/18 Page 8 of 12 PageID #: 593 9 Further, even if not futile, granting Plaintiff additional time would result in prejudice to Bard. As noted above, Like the scheduling orders in prior wave cases, this Court staggered the parties’ respective deadlines for serving expert disclosures and reports in PTO 283, with Bard’s expert disclosures and reports being due 30 days after the submission of Plaintiffs’ expert disclosures and reports. These staggered deadlines appear to have been designed, in part, to allow Bard time to (a) review Plaintiff’s expert reports and disclosures to determine appropriate experts Bard would designate in response to Plaintiffs’ experts, and (b) allow Bard’s case- specific experts to review, evaluate, and respond as appropriate to the opinions of each of Plaintiff’s case-specific experts. If Plaintiff is now permitted additional time to submit her missing expert materials, especially without a corresponding extension of time granted to Bard,4 Bard’s ability to comply with its rapidly approaching deadline for its expert disclosures and reports would be severely prejudiced. Indeed, it would be unduly burdensome, inefficient, and wasteful for Bard to have to incur the trouble and expense of preparing initial expert disclosures and reports with limited to no data from Plaintiff, wait for Plaintiff to then provide her long overdue expert data, and then have to ask its experts to supplement their preliminary expert reports once Plaintiff’s expert materials are provided. Further, by allowing noncompliant plaintiffs, such as the Plaintiff in this case, to have more time and a third bite at the apple, the efficiencies associated with handling expert depositions in a logical and uniform manner is lost, making the process of completing these depositions within the remaining discovery period far more complicated, expensive, and inconvenient for the parties’ respective experts. Given that 4 Due to the number of cases in Wave 7, it will be challenging for the parties to meet the compressed discovery and deposition deadlines even under optimal circumstances. Additional extensions will impact that tenuous balance, and require further revision of the deadlines for discovery and motion practice. If the Court determines that any Plaintiff has demonstrated good cause for additional time to serve expert disclosures and/or expert reports, then fairness dictates that Bard be given an equal extension of time in which to serve their disclosures and expert reports. Case 2:16-cv-10794 Document 106 Filed 07/30/18 Page 9 of 12 PageID #: 594 10 Bard has done nothing to create the situation in which Plaintiff now finds herself, and given that Plaintiff failed to obtain leave of court or the consent of Bard to extend her expert discovery deadline, such a result would not only unfair, but would disrupt the smooth administration of the remaining cases in Wave 7, something that this Court has consistently attempted to avoid through its issuance of various pretrial orders in this case. Thus, Bard requests that Plaintiff not be permitted any further extensions and its Motion be granted. C. Alternatively, Plaintiffs should be ordered to show cause why their cases should not be dismissed. As noted above, expert testimony on issues of general and specific causation is essential: without such testimony, a plaintiff cannot establish a prima facie case. See, e.g., Demmler, 671 A.2d at 1155; Dion, 520 A.2d at 881; Soufflas, 474 F. Supp. 2d at 751; Webb, 2016 WL 454821, at *2; Burton, 1999 WL 118020, at *8; Lewis, 601 F. App’x at 212; In re Mirena IUD Prods. Liab. Litig., 202 F. Supp. 3d at 312. Based on this well-established case law and the other legal authorities cited above, Plaintiff’s failure to disclose expert witnesses or provide any expert reports is fatal to her claims, and the Court should dismiss these claims now to avoid further trouble, expense, and prejudice to Bard. If, however, the Court is inclined to give Plaintiff an opportunity to somehow attempt to justify her non-compliance with the clear and unambiguous language contained in PTO 283, then, at a minimum, Bard respectfully requests that the Court issue an Order requiring Plaintiff to appear before the Court to show cause why her case should not be dismissed for their failure to establish a prima facie case and allow Bard to provide its counter arguments. V. CONCLUSION For the foregoing reasons, Bard requests that its Motion be granted and Plaintiff’s case be dismissed. In the alternative, Bard requests that Plaintiff be denied any further extensions or Case 2:16-cv-10794 Document 106 Filed 07/30/18 Page 10 of 12 PageID #: 595 11 time or permitted to unilaterally serve untimely expert disclosures and reports in response to this Motion and be ordered to show cause why her claims should not be dismissed. If this Court elects not to dismiss this case and/or require Plaintiff to show cause why her case should not be dismissed, then Bard requests that any extension be limited to no more than 30 days and that Bard be granted an extension of an equal amount of time to comply with its expert obligations under PTO 283. Given the time sensitivity of the issues raised in this Motion, Bard further requests an expedited briefing schedule be entered in connection with this Motion and Bard’s current deadline of August 13, 2018, for serving its expert disclosures and reports be stayed pending a ruling on his Motion. Dated: July 30, 2018 Respectfully submitted, REED SMITH LLP /s/ Melissa A. Geist Melissa A. Geist Princeton Forrestal Village 136 Main Street, Suite 250 Princeton, New Jersey 08543 (609) 987-0050 mgeist@reedsmith.com Eric L. Alexander REED SMITH, LLP 1301 K Street, NW Suite 1000 - East Tower Washington, DC 20005 (202) 414-9200 ealexander@reedsmith.com Lori G. Cohen GREENBERG TRAURIG, LLP Terminus 200 3333 Piedmont Road N.E., Suite 2100 Atlanta, Georgia 30305 (678) 553-2385 CohenL@gtlaw.com Attorneys for C. R. Bard, Inc. Case 2:16-cv-10794 Document 106 Filed 07/30/18 Page 11 of 12 PageID #: 596 12 CERTIFICATE OF SERVICE I certify that on this day, I electronically filed this document with the clerk of the court using the CM/ECF system, which will send notification of this filing to CM/ECF participants registered to receive service in this MDL. I have served all pro se plaintiffs via United States mail and Certified Mail, return receipt requested, at their last known address per the Court’s docket. /s/ Melissa A. Geist MELISSA A. GEIST Case 2:16-cv-10794 Document 106 Filed 07/30/18 Page 12 of 12 PageID #: 597