United States District Court, W.D. Louisiana, Monroe Division
L. HAYES, MAG. JUDGE
A. DOUGHTY, UNITED STATES DISTRICT JUDGE
ruling involves the disposition of Defendants' Motion to
Dismiss Under Rule 41(b) for Plaintiffs' Failure to
Comply With the Court's Order Regarding Service of
Plaintiff Fact Sheet [Doc. No. 30], and Defendants'
Motion for Summary Judgment [Doc. No. 37].
April 30, 2013, Plaintiffs filed suit in the United States
District Court, Western District of Louisiana. The Complaint
alleged that Linda Kay Finley suffered from prolapse,
cystocele and stress urinary incontinence and that she was
implanted with the TVT Secur and Prolift Vaginal Mesh System
on July 12, 2007. The Complaint further alleged that Linda
Kay Finley had the vaginal mesh removed on June 16, 2009, due
to complications and eventually died as a result of the
Defendants' fault. Plaintiffs sued Johnson & Johnson,
Inc., along with Ethicon, Inc., for the alleged injuries.
Order for Multi-District Litigation Transfer entitled
“In re: Ethicon, Inc. Pelvic Repair System Products
Liability Litigation, MDL No. 2327, ”
this case was transferred to the above described MDL
in West Virginia. The case was transferred pursuant to 28
U.S.C. §1407, which involves common questions of fact
pending in different districts which may be transferred for
coordinated or consolidated pretrial proceedings. In
accordance with said statute, these actions transferred were
to be remanded by the panel at or before the conclusion of
the pretrial proceedings.
MDL proceeding, several pretrial orders were filed.
The pretrial orders which affect the issues in this ruling
are Pretrial Order No. 280 [Doc. No. 15] and Pretrial Order
No. 303 [Doc. No. 29]. The Orders provided that the
Plaintiffs' Fact Sheets were due by March 19, 2018, and
Plaintiffs' expert disclosures were due by June 4, 2018.
22, 2018, in the MDL proceeding, Defendants filed a
Motion to Dismiss Under Rule 41(b) for Plaintiffs'
Failure to Comply With the Court's Order Regarding
Service of Plaintiffs' Fact Sheet [Doc. No. 30]. On
October 12, 2018, in the MDL proceeding, the
Defendants filed a Motion for Summary Judgment [Doc. No. 37],
alleging that the Plaintiffs had not designated an expert who
could prove that the injuries and/or death of Mrs. Finley was
caused by fault of the Defendants.
the above motions were filed in the MDL proceeding,
they were not ruled on by the Judge in that proceeding. This
case was transferred back to the Western District of
Louisiana on April 29, 2019. Therefore, the above motions are
maintain that Plaintiffs' suit should be dismissed, with
prejudice, as a result of not complying with the pretrial
order, which required service of a Plaintiff Fact Sheet in
the MDL proceeding by March 19, 2018. See [Doc. No.
30]. In its Motion for Summary Judgment Defendants maintain
that as a result of Plaintiffs failure to designate an expert
witness, within the pretrial deadline, Plaintiffs are unable
to prove causation with regard to the products allegedly
manufactured and/or sold by the Defendants. See [Doc. No.
filed responses to the Motion to Dismiss and the Motion for
Summary Judgment. Plaintiffs maintain that after this
proceeding was transferred to the MDL proceeding in
West Virginia, the email address of Plaintiffs' attorney
was incorrect, and notice was never received regarding the
filings of MDL or pretrial orders. The Plaintiffs
also maintain that their attorney was diagnosed with
Parkinson's Disease and has undergone extensive
treatment, including brain surgery. Plaintiffs further
maintain that the pretrial orders in the MDL do not
bind them since the case has now been remanded to this
Court believes that the MDL pretrial orders are
binding on Plaintiffs. This matter was transferred to the
MDL in Virginia pursuant to 28 U.S.C. § 1407,
which involves multi-district litigation to be consolidated
for pretrial proceedings. At the end of the pretrial
proceedings, the actions are transferred back to the Court
where they came from. The MDL judge felt that the
pretrial proceedings had been completed and remanded the case
back to this district. The essential purpose of Congress in
enacting 28 U.S.C. § 1407 was to permit centralization
in one district of all pretrial proceedings when civil
actions involving common questions of fact are pending in
different districts. Matter of New York City Mun.
Securities Litigation, 572 F.2d 49 (2d Cir. 1978).
though the MDL pretrial orders are binding on
Plaintiffs, this Court finds good cause for Plaintiffs'
failure to timely file the Plaintiff Fact Sheet and good
cause for failing to timely designate expert witnesses.
Defendants' Motion to Dismiss [Doc. No. 30], and Motion
for Summary Judgment [Doc. No. 37] are
DENIED at this time. A new ...