Wade Clark Mulcahy LLP

<p style="text-align: justify;">In a recent ruling from the Eastern District of PA, <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/08/In-re-Zostavax.pdf">In re Zostavax</a>, </em>the Court granted the defendant’s motion to dismiss the plaintiff’s complaint for failure to comply with discovery deadlines. The complaint was part of a multidistrict litigation (“MDL”), related to a products liability claim to vaccine from defendant Merck. MDL litigation requires basic initial information necessary to move the case forward. This information is similar to initial disclosures in any federal court case. The plaintiff failed to provide the initial information or provide any required discovery on time.</p>
<p style="text-align: justify;">The plaintiff failed to timely provide a PFS pursuant to Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure. Further the plaintiff failed to comply with a court order to provide the required discovery after missing various deadlines. As a result, the defendant moved to dismiss the case under, Rule 41 (b), that provides “If the plaintiff fails to ... comply with ... a court order, a defendant may move to dismiss the action.” A court considers the following factors when ruling on a motion to dismiss the action for failure to provide discovery; (1) the extent of the party's personal responsibility; (2) prejudice to the adversary; (3) a history of dilatoriness; (4) whether the conduct of the party was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal; and (6) the meritoriousness of the claim or defense. <em>Poulis v. State Farm Fire &amp; Cas. Co.</em>, 747 F.2d 863 (3d Cir. 1984).</p>
<p style="text-align: justify;">The court concluded based on plaintiff’s various violations concerning deadlines dismissal was appropriate and dismissed the case. It is the plaintiff’s responsibly to prove their case and failure to provide information to allow the defendant to evaluate the case prejudices the defense.</p>
<p style="text-align: justify;">Thanks to Kevin Riley for his contribution to this post.  Should you have any questions, please contact <a href="mailto:tbracken@wcmlaw.com">Tom Bracken</a>.</p>