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In re Bair Hugger Forced Air Warming Devices Products Liability Litigation

United States District Court, D. Minnesota

August 25, 2017

In re BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS LIABILITY LITIGATION This Document Relates To: Starnes
v.
3M Co., et al. No. 16-cv-826 Hartzel
v.
3M Co., et al. 16-cv-1338 Newcomb
v.
3M Co., et al. 16-cv-1834 Rivers
v.
3M Co., et al. 16-cv-1847 Busby
v.
3M Co., et al. 16-cv-2156 Pettersen
v.
3M Co., et al. 16-cv-2212 Upton
v.
3M Co., et al. 16-cv-2374 Nadeau
v.
3M Co., et al. 16-cv-2395 Davis
v.
3M Co., et al. 16-cv-2661 Miller, et al.
v.
3M Co., et al. 16-cv-2711 Brannon
v.
3M Co., et al. 16-cv-2750 Hood, et al.
v.
3M Co., et al. 16-cv-2787 Novak
v.
3M Co., et al. 16-cv-2959 Butkus
v.
3M Co., et al. 16-cv-4353 Gill
v.
3M Co., et al. 16-cv-4412 Burks
v.
3M Co., et al. 16-cv-4418 Stouffer
v.
3M Co., et al. 17-cv-188 Raymond
v.
3M Co., et al. 17-cv-299 Sanders
v.
3M Co., et al. 17-cv-350 Perez
v.
3M Co., et al. 17-cv-597

          ORDER

          JOAN N. ERICKSEN, UNITED STATES DISTRICT JUDGE

         Defendants 3M Company and Arizant Healthcare Inc. moved to dismiss twenty-two actions, including those listed above, for Plaintiffs' failure to comply with a court order, Pretrial Order No. 14 (“PTO 14”). Mot. to Dismiss (“Motion”), 15-md-2666 Dkt. No. 637. Defendants withdrew the Motion as to Terry and Dana Hood (16-cv-2787). Hulse Ltr., 15-md-2666 Dkt. No. 664. Plaintiffs Joanne Buttacavoli (16-cv-2626) and Althea Magee (16-cv-2481) stipulated to dismiss their claims with prejudice. Stip., 16-cv-2626 Dkt. No. 7; Stip., 16-cv-2481 Dkt. No. 7. Plaintiffs Edward Brannon (16-cv- 2750) and John W. Butkus, Jr. (16-cv-4353) opposed late. Brannon's Opp'n, 15-md-2666 Dkt. No. 677 (filed Aug. 16, 2017, due Aug. 10, 2017); Butkus's Opp'n, 15-md-2666 Dkt. No. 668 (filed Aug. 14, 2017, due Aug. 10, 2017). The remaining Plaintiffs did not oppose. The Court held a hearing on the Motion on August 17, 2017 and decided the Motion on the record. The Court now memorializes its rulings and provides more reasoning.

         I. Denial of Motion without prejudice to renew as to Plaintiffs Brannon and Pettersen

         At the hearing, counsel for Plaintiffs Edward Brannon (16-cv-2750) and Raymond Pettersen (16-cv-2212) responded. The night before the hearing, Brannon served a Plaintiff Fact Sheet (“PFS”) that he believes complies with PTO 14. At the hearing, Plaintiffs' counsel asserted that Pettersen cannot comply with PTO 14 because he is in hospice care. On these facts, the Court DENIED the Motion as to Brannon and Pettersen without prejudice to renew.

         II. Dismissal with prejudice as to remaining seventeen cases

         The Court GRANTED the Motion for the remaining seventeen cases. The Court may dismiss an action with prejudice “[i]f the plaintiff fails to prosecute or to comply with a court order.” Fed.R.Civ.P. 41(b). Even if a mere failure to respond, noncompliance with a court order can “constitute[] a pattern of intentional delay meriting dismissal with prejudice” under Rule 41(b). First Gen. Res. Co. v. Elton Leather Corp., 958 F.2d 204, 206 (8th Cir. 1992) (affirming dismissal under R. 41(b) when plaintiffs failed to respond to a discovery request and the follow-up court order, because the trial court gave them an opportunity to cure and an express warning about dismissal). By PTO 14, the Court here ordered Plaintiffs to respond to a request for information in lieu of discovery. See PTO ¶¶ 2-4 (requiring PFS service, verification and “core” facts). The Court provided an opportunity to cure. Id. ¶¶ 6-8 (providing that dismissal can happen only after a three-week long meet-and-confer process and then “two sequential court conferences” each one month apart). And the Court warned expressly of dismissal. Id. ¶ 8 (warning that “Defendants may make a motion for dismissal for failure to comply with this Court's Pretrial Order as to the allegedly delinquent party”). Besides, when Defendants moved to dismiss the Plaintiffs here, the Court had already ruled on two earlier motions to dismiss as to other plaintiffs failing to comply with PTO 14. Order, 15-md-2666 Dkt. No. 622 (July 24, 2017); Order, 15-md-2666 Dkt. No. 577 (June 16, 2017). Thus, if PTO 14's opportunity to cure has run, a plaintiff's continued noncompliance is a pattern of intentional delay for which the Court may dismiss her action with prejudice under Rule 41(b).

         The Court need not consider lesser sanctions if, as here, “plaintiffs are preventing the defendants from completing discovery.” First Gen., 958 F.2d at 206. Even if the Court were to consider the proffered lesser sanction of dismissal without prejudice, Plaintiffs must explain why this lesser sanction would be effective given that prior warnings had failed. See Id. at 206 (affirming dismissal with prejudice because “the district court already found lesser sanctions ineffective”). These failed prior warnings include those built into PTO 14 and the prior dismissal orders as to other plaintiffs, described above. Plaintiffs here did not explain why lesser sanctions would work when prior warnings had failed. See, e.g., Perez's Resp., 15-md-2666 Dkt. No. 655. Dismissal with prejudice was thus the appropriate sanction.

         PTO 14 provides for service of PFSs in lieu of interrogatories. Cf. Fed. R. Civ. P. 33. By completing PFSs, Plaintiffs disclose facts material to their claims that would otherwise be disclosed in traditional discovery. To allow the Court to manage this MDL and to allow the parties to fairly negotiate settlement or advance to trial, Plaintiffs must disclose these facts on the schedule that they negotiated and submitted to the Court for adoption. See Manual for Complex Litigation § 22.83 (4th ed. 2004) (recommending that, with the parties' guidance, courts create tools other than interrogatories to “prevent multiple requests for the same information”).

         Defendants argued that Plaintiffs had either not served PFSs, see PTO 14 ¶ 2 (requiring service), or if they had served, served unverified and deficient PFSs, see Id. ¶ 3 (requiring verification under oath); id. ¶ 4 (listing “core deficiencies” in responses that justify dismissal). Defendants cited defects in PFS responses about core facts such as medical condition (PFS section IV, parts 1, 7, 8 and 10), insurance coverage (PFS section V, all parts) and alleged economic damages (PFS section VII, parts 1-2). Defendants had timely notified Plaintiffs of these defects. See PTO 14 ¶ 6. Because Plaintiffs had failed to resolve these defects despite notice and appearing on the status-conference agenda for two sequential conferences (June 9, 2017 and July 14, 2017), Defendants had validly moved to dismiss. See Id. ¶ 8.

         A. Plaintiffs Marilyn Burks (16-cv-4418), Larry Gill (16-cv-4412), Thomas and Janet Miller (16-cv-2711), Lise Nadeau (16-cv-2395), Jerline Newcomb (16-cv-1834), Daniel Novak (16-cv-2959) and Phyllis Starnes (16-cv-826) did not respond to the Motion.

         The Court DISMISSED these seven actions with prejudice under Rule 41(b) for Plaintiffs' failure to comply with PTO 14 and to prosecute their cases.

         B. Plaintiffs Jeffery Busby (16-cv-2165), Lolethia Davis (16-cv-2661), Rex Hartzel (16-cv-1338), Debora Perez (17-cv-597), Philip Raymond (17-cv-299), Minnie Rivers (16-cv-1847), Walter Sanders (17-cv-350), William Stouffer (17-cv-188) and Patrick Upton (16-cv-2374) did not oppose the Motion.

         For the nine cases listed above, counsel submitted a log of attempts to solicit Plaintiffs' interest in prosecuting their cases. These submissions did not oppose the Motion because they neither disputed Defendants's contentions nor excused Plaintiff's noncompliance. Compare Order, 15-md-2666 Dkt. No. 622, at 2 (deeming log of “unsuccessful attempts to enlist the client's cooperation” non-opposition), with, e.g., Perez's Resp., 15-md-2666 Dkt. No. 655 ¶¶ 4-6 (“Efforts to contact [Plaintiff] to inform her of the Plaintiff Fact Sheet and other necessary steps of the litigation . . . were unsuccessful. . . .”). In fact, all these Plaintiffs had not responded to counsel for at least six months. See, e.g., Perez's Resp. ¶¶ 4-6. Still, counsel requested a 120-day extension or dismissal without prejudice. The Court rejected these requests as unjustified. See, e.g., id. ¶ 7 (“[T]he undersigned counsel is without any knowledge of circumstances that may preclude Plaintiff from responding to the counsel's contact. . . .”). The Court thus DISMISSED these nine actions with prejudice under Rule 41(b) for Plaintiffs' failure to prosecute and failure to comply with PTO 14.

         C. Plaintiff John W. Butkus, Jr. (16-cv-4353) opposed the Motion late and cured ...


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