Opinion
Case No. 14-cv-7315 NO. 14-7316 (Ruble) NO. 14-7318 (Stelzer) NO. 14-7317 (Strimel) NO. 15-0384 (Walsh) NO. 16-1458 (Dunstan) NO. 16-1645 (Clark) NO. 16-1921 (Souto) NO. 16-2166 (B. Bailey) NO. 16-2154 (Campos) NO. 16-2717 (Bolds) NO. 16-3049 (Tulgetske) NO. 16-3409 (Abbey) NO. 16-3589 (Burgis) NO. 17-4936 (Gonzalez) NO. 18-0838 (Alfaro) NO. 18-0837 (Galan) NO. 16-3710 (Dong) NO. 16-3730 (Mantor) NO. 16-3731 (Olague) NO. 16-3732 (Gross) NO. 16-3733 (Johnson) NO. 16-3766 (Summerlin) NO. 16-3767 (Rodvill) NO. 16-3768 (Bernal) NO. 16-3769 (Aponte) NO. 16-4081 (Bradford) NO. 17-2915 (Wistrom) NO. 17-3968 (Bobo) NO. 17-4417 (Guess) NO. 18-0836 (Morgan) NO. 18-0037 (Jenson) NO. 18-0908 (Archer)
12-26-2019
HELEN MCLAUGHLIN et al., Plaintiffs, v. BAYER ESSURE INC. et al., Defendants. And Related Actions
The Hon. John R. Padova
REPORT & RECOMMENDATIONS OF THE SPECIAL DISCOVERY MASTER REGARDING BAYER'S MOTION TO DISMISS FOR FAILURE TO PROVIDE SUBSTANTIALLY COMPLETE PLAINTIFF FACT SHEETS
BACKGROUND
Following extensive negotiations between the parties and motion practice before the Court, on May 23, 2017, the Court overruled Plaintiffs' objections to Defendants' Proposed PFS and approved the use of Defendants' Proposed PFS Order at ¶ 1 (May 23, 2017) [Dkt. 143]. The original deadline for submission of all outstanding PFSs was January 3, 2018. See Order Regarding Plaintiff Fact Sheets at ¶ 2.a (Feb. 15, 2018) [Dkt. 143]. On February 15, 2018, the Court entered a PFS Enforcement Order, providing that if a plaintiff fails to provide a "substantially complete and verified PFS," Bayer may move to dismiss the complaint. See id. at ¶ 4. For a PFS to be substantially complete the Plaintiff must:
i. Serve the completed and executed PFS upon Defendants' counsel in the manner described in Section 1.j below;See id. at ¶ 1.f. The Court's Order defines "Core Case Information" as:
ii. Make reasonable inquiry in order to obtain and provide all "Core Case Information," as defined below;
iii. Produce all documents in their or their attorney's possession, including writings on paper or in electronic form (if Plaintiff has any in their custody or possession, Plaintiff shall indicate which ones they have and attach a copy to this form) pursuant to the Document Demands in Section XI of the PFS;
iv. Produce executed Authorizations pursuant to Section XI of the PFS; and
v. Sign the Declaration found in Section XII of the PFS.
i. PFS Section I: Question I (Identification of case the PFS is submitted in);
ii. PFS Section II: Questions 1, 2 and 3 (Identification of Essure User);
iii. PFS Section III: Questions 2, 3, 4, 5, and 8 (Identification of the date of Essure placement; Identification of the physician; Identification of the facility where Essure procedure occurred; and identification of complications from Essure placement, if applicable). Lack of a physician or healthcare provider zip code is not considered a deficiency;
iv. PFS Section III: Questions 9 and 10 (Identification of the date of the Essure Confirmation Test, if applicable; Identification of information provided by physician/healthcare provider about Essure Confirmation Test, if applicable);
v. PFS Section IV: Questions 2, 4, and 5 (Identification of the date of Essure removal, physicians or healthcare providers involved in removal, and type of procedure used; Identification of alleged symptoms or injuries resolved or decreased following removal, if applicable; Identification of information by physician/healthcare provider about complications from removal, if any);
vi. PFS Section V: Questions 1, 2, 3, 4, and 12 (alleged injury information);See id. At ¶ 1.f. Plaintiffs have known about these requirements for well over a year. Although many PFSs have been long deficient, Bayer has not, prior to their motion related to social media production filed on May 6, 2019 [Dkt. 419], sought to dismiss any Plaintiff who had submitted a PFS that was even partially compliant with the Court's Order, instead granting Plaintiffs numerous opportunities to cure their deficiencies.
vii. PFS Section VI: Questions 1, 4, 5, 6, and 7 (Identification of communications about alleged injuries, if applicable);
viii. PFS Section IX: Questions 1, 2, and 3 (Identification of healthcare providers and pharmacies). The lack of a healthcare provider or pharmacy phone number or zip code is not considered a deficiency;
ix. ix. PFS Section XII: Plaintiffs signature on PFS.
On April 9, 2019, in anticipation of the close of PFS discovery, Bayer sent Plaintiffs an email containing two spreadsheets, those individuals with outstanding core PFS deficiencies, and those Plaintiffs for whom social media had not been adequately produced. Bayer's core PFS deficiency spreadsheet set forth the specific reasons why Bayer believed each individual Plaintiffs PFS was not "substantially complete." On April 23, 2019, the Court entered a Case Management Order requiring, among other things, that "[a]ll remaining Plaintiff Fact Sheets shall be produced, and all deficiencies in Plaintiff Fact Sheets shall be corrected, by April 30, 2019.
In May, 2019, Defendants filed a Motion to Dismiss 150 Plaintiffs' cases for a claimed failure to provide substantially complete Plaintiff facts Sheets (PFS) in the following ways: (1) failure to state the date on which Plaintiff first suspected Essure was the cause of her injuries, (2) failiure to produce medical records, (3) failure to state the particular warranties/representations on which Plaintiff relied in deciding to have Essure implanted and (4) failure to sign/verify the PFS. Following a meet and confer between the parties, the Defendants resolved 103 of these cases either by withdrawal of the Motion or by other means. The remaining 47 Plaintiffs are the subject of this Report & Recommendations. As the Court can see from the attached spreadsheet (Exhibit A) in which the parties described the latest status of the 47 remaining cases, Plaintiffs filed updated PFS in many of their cases after the filing of the instant Motion, including updates filed as recently as this month. At the same time, a number of the Plaintiffs have never completed their deficient PFS and despite repeated attempts by the PSC to contact them, the PSC has reported that it has lost contact with such Plaintiffs, presumably meaning that they will be unable to remedy their deficiencies. In a few cases, the PSC has agreed to voluntarily dismiss the cases of non-compliant Plaintiffs. This Report & Recommendations is based on the parties report in Exhibit A.
LEGAL STANDARD
Rule 37(b)(2)(A)(v) permits the Court to "dismiss the action or proceeding in whole or in part" where a party "fails to obey an order to provide or permit discovery." Similarly, Rule 41(b) instructs that, where a plaintiff "fails to prosecute or to comply with these rules or a court order," the Court may order dismissal of the claim. Unless the Court rules otherwise, such a dismissal "operates as an adjudication on the merits." Fed. R. Civ. P. 41 (b).
Whether under Rule 37 or Rule 41, courts analyze a motion to dismiss for failure to comply with a discovery order under the so-called Poulis factors. Yerke v. Aetna, No. CV 16-06512, 2017 WL 4922434, at *1 (E.D. Pa. Oct. 31, 2017) (citing Poulis v. State Farm Fire & Casualty Co., 747 F. 2d 863 (3d Cir. 1984)). Under Poulis, the district court considers:
(1) the extent of the noncomplying party's personal responsibility; (2) prejudice to the adversary; (3) a history of dilatoriness by the noncompliant party; (4) the existence of bad faith or willful conduct; (5) the effectiveness of alternative sanctions; and (6) whether the claims are meritorious.In re Avandia Mktg., Sales Practices & Prod Liab. Litig , 319 F.R.D. 480, 485 (E.D. Pa. 2017). Not all six factors must be present to find dismissal is warranted, id., and "where 'a litigant's conduct makes adjudication of the case impossible..., balancing under Poulis is unnecessary.'" Yerke v. Aetna, No. CV 16-06512, 2017 WL 4922434, at *1 (E.D. Pa. Oct. 31, 2017) (quoting Jones v. New Jersey Bar Ass'n, 242 Fed. Appx. 793, 794 (3d Cir. 2007)) (failure to file an amended complaint makes adjudication of the case impossible). Whether to dismiss a claim for failure to prosecute or comply with discovery orders is committed to the discretion of the trial court. See, e.g., Mindek v Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).
While it is true that courts have dismissed plaintiffs' cases for failure to file any PFS at all, federal courts throughout the United States have generally provided plaintiffs, after the filing of Motion to Dismiss, a final opportunity to comply by substantially completing the PFS, or have dismissed without prejudice and provided a final opportunity to comply, vacating such dismissals where compliance is ultimately found. (See cases collected at footnotes 2-4 In Plaintiffs' Response to the Motion to Dismiss.) Indeed, judges in the Eastern District of Pennsylvania have provided plaintiffs a final, post-motion, opportunity to comply in the face of more egregious failures than those alleged here. (See cases cited at footnotes 5-7 in Plaintiffs' Responses to the Motion to Dismiss.)
REPORT
Plaintiffs acknowledge that as of the time of the filing of the Motion to Dismiss, many of the 47 Plaintiffs in question had failed to supply complete core PFS information in one or more of the ways alleged by Bayer in its Motion. They argue, however, that the majority of the 47 have , at least by the time of this writing, substantially complied with the PFS process in the following terms: (1) with respect to the failure to include the date on which Plaintiffs first suspected that Essure was the cause of their injuries, many Plaintiffs did, in fact, answer the PFS inquiry in question by stating that they cannot remember such dates, (2) with respect to the failure to state the specific warranties/representations on which they relied, Plaintiffs stated in some cases the warranties that they recall but that in many others, Plaintiffs complied by stating that they cannot remember the particular warranties/representations on which they relied, many years after implantation, (3) with respect to the failure to attach medical records, Plaintiffs argue that, with few exceptions, they have, at this point provided the accessible and relevant medical records or formally requested their medical records only to be informed by the various health providers that the records no longer exist, but also provided Bayer with authorizations (as required by the PFS) to seek the records on its own. With respect to the failure to sign/verify the PFS, the PSC concedes that 9 Plaintiffs have failed to sign the PFS and are persons with whom, despite repeated efforts, the PSC has lost touch. (The Special Discovery Master assumes that non-compliant Plaintiffs with whom the PSC has lost touch after repeated efforts, will not likely be able to comply.) RECOMMENDATIONS
(1) With respect to the Plaintiffs who responded in their PFS that they cannot recall the date on which they first suspected that their injuries were Essure-related, this response does not amount to a failure to substantially complete the PFS. An answer that a Plaintiff "does not recall" is an appropriate answer to a PFS inquiry (which is the equivalent of an Interrogatory) as it would be in an Interrogatory Answer filed under Rule 33. Though such answer may create problems for a Plaintiff who resists Summary Judgment on the basis of the Discovery Rule or at trial, such answer is complete for PFS purposes.
(2a) Similarly, with respect to those Plaintiffs who failed to describe the particular warranties/representations on which they relied, prior to the filing of the Motion, but thereafter have provided information regarding the particular warranties or representations on which they relied, the Special Discovery Master recommends that the Court rule, consistent with the cases cited by the PSC both within and without the Eastern District of Pennsylvania, that the late-answering Plaintiffs have taken advantage of the generally accepted, post-Motion opportunity to bring themselves into compliance, particularly where, as here, there has been no showing of prejudice.(2b) With respect to those Plaintiffs who made no response or non-responsive answer as to the warranties/representations allegedly relied upon, the failure to answer that inquiry amounts to a failure to complete a core information term of the PFS at least as to claims based on warranties/mi srepresentations. (3a) With respect to the Plaintiffs who failed to attach any medical records to their PFS, where a Plaintiff has formally requested such records from the appropriate providers only to receive a "No Records Found" (NFS) notice, it is clear that neither Plaintiffs nor their counsel has possession of such records and they have made a good faith effort to obtain them. The failure to attach medical records which do not exist, along with the serving of a medical authorization cannot constitute failure to complete the PFS as to that requirement. (3b) As to those Plaintiffs, however, who have failed to attach any medical records and have not attempted to obtain them at this late date, though providing health record authorizations, such Plaintiffs have indeed failed to meet a core information requirement of the PFS. Similarly, those who have failed to provide both medical records and a medical authorization, have failed to meet the core information requirements of the PFS Order. (4) With respect to those Plaintiffs who have failed to sign/verify their PFS, such a failure is a violation of the requirement to provide Core Case Information. The parties agree that the appropriate standard by which to measure the propriety of a dismissal motion for failure to serve substantially complete (i.e. at least all core information) PFS is set forth by the Third Circuit in Poulis v. State Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). In Poulis, the court set forth a six-factor test for dismissal which governs the district court's discretion as to resolution of the motion.
(1) the extent of the non-complying party's personal responsibility; (2) prejudice to the adversary; (3) a history of dilatoriness by the noncompliant party; (4) the existence of bad faith or willful misconduct; (5) the effectiveness of alternative sanctions; and (6) whether the claims are meritorious.
Whereas, the Special Discovery Master finds that the Plaintiffs whose situations are described in Paragraphs (1), (2a), and (3a) above, have not failed to serve core information, the Poulis test does not come into play. However, the Poulis factors do apply to the Plaintiffs described in Paragraphs (2b), (3b) and Poulis factors (1), (2), (3) and (5) clearly weigh in favor of dismissal with prejudice. Therefore, (a) the Special Discovery Master recommends that with respect to the Plaintiffs who Bayer claims did not state the date on which they first suspected that Essure was the cause of their injuries or harm, the Court: DENY Bayer's Motion to Dismiss as to those Plaintiffs who have claimed a lack memory as to the date on which they first suspected Essure was the cause of their injuries or provided responses to that query after the Motion was filed. Those Plaintiffs are:
Cordoba
Jackson
King
Nieuwenhuis
Stanberry
Utley;
But GRANT Bayer's Motion to Dismiss as to those Plaintiffs who made no response. They are:
Amick
Blackburn
Burgis
Clinger
Davis
Dominguez
Drew
Franklin
Galan
Jones
Long
Reasoner
Silva
(b) With respect to those Plaintiffs who Bayer claims failed to identify the specific warranties/representations on which they relied, DENY Bayer's Motion as to those Plaintiffs who have claimed a failure of memory as to specific warranties/representations on which they relied. Those Plaintiffs are:Smith
ArnoldBut GRANT Bayer's Motion as to those Plaintiffs who FAILED to disclose warranties/representations ONLY as to the Breach of Warranty/Misrepresentation Claims. Those are: McCall Reasoner (c) As to those Plaintiffs who Bayer claims failed to produce medical records, DENY Bayer's Motion as to those Plaintiffs who eventually provided medical records, requested their medical records but received "No Records Found" (NRF) notices from their providers if such Plaintiffs have produced medical record authorizations or otherwise demonstrated good faith* in attempting to obtain their records and provided a medical authorization. Those Plaintiffs are:
Carey
Flud
Forde
Galan
Guerrero
Guzman
S. McDermott
Runnels
Acosta
Amos
Armendariz
Burgis
Burney
Dominguez*
Gibson
Jones*
Long
Lovda-Hamrick
B. McDermott*
McNamara
Molnoski
Mooney
Motes
Mullins
Sorter
Utley (d) GRANT Bayer's Motion with Prejudice as to those Plaintiffs who made no effort to obtain their medical records from their providers, even if they provided health authorizations to Bayer unless such medical records are served within 30 days of this Order. Those Plaintiffs are:
Gamble
Plummer
Smith
Steppat
Wilson
(e) GRANT Bayer's Motion with Prejudice as to those Plaintiffs who have not signed/verified their PFS unless signed/verified and served within 14 days of this Order. Those Plaintiffs are:
Blackburn
Davis
Drew
Franklin
Gamble
Plummer
Reasoner
Silva
Utley DENY Bayer's Motion as to:
Drew
Forde
Jordan
PLAINTIFF BY PLAINTIFF SUMMARY OF RECOMMENDED DISPOSITION
MOTION TO DISMISS GRANTED ON ONE OR MORE DEFICIENCIES (20) AS TO : Amick Blackburn Burgis Clinger Davis Dominguez Drew Franklin Gamble Galan Jones Long McCall (only as to Warranty/Misrepresentation claims) Plummer Reasoner Silva Smith Steppat Wilson Utley MOTION TO DISMISS DENIED (27) AS TO: Acosta Amos Armendariz Arnold Burney Carey Cordoba Flud Forde Gibson Guerrero Guzman Jackson Jordan King Lovda-Hamrick Nieuwenhuis B. McDermott S. McDermott McNamara Molnoski Mooney Motes Mullins Runnels Sorter Stanberry
Respectfully submitteed
/s/
Special Discovery Master Date: December 26, 2019
Exhibit A
Plaintiffs Subject to the Motion as of 12/13/2019, according to Defendants
* Means that Plaintiffs appear in more than one chart
** Means that Plaintiffs produced documents after Motion was filed on June 21, 2019
Plaintiffs Who Had Not Provided Medical Records
| Plaintiff | Plaintiff's Position/Date Plaintiff's Served PFSDocuments | Defendants' Position |
|---|---|---|
| Acosta, Afden** | Records were received after many attempts toreceive cooperation with facility. Records served11/20/2019. | Plaintiff is subject to motion forfailure to produce medicalrecords; plaintiff producedmedical records after motionwas filed |
| Amos, Bridget** | No Records Found Notice served 7/5/2019;Implant and treating records served 11/20/2019.Med auth served to Defs on 8/31/2018. | Plaintiff is subject to motionfor failure to produce medicalrecords; plaintiff producedmedical records after motionwas filed |
| Armendariz,Claudia** | No Records Found Notice served 7/5/19; Treatingrecords served 7/10/19. Med auth served to Defson 11/13/2017. Defendants have permission todate the med auths. | Plaintiff is subject to motionfor failure to produce medicalrecords; med authorizationsserved around 11/13/2017 notsigned or dated; medauthorizations served around7/22/2018 signed but not dated;plaintiff produced medicalrecords after motionwas filed |
| Burgis, Mandy*,** | Lost contact with client despite persistent, repeatedattempts. Treatment records were finally receivedand served 10/18/2019. Med auth served to Defson 12/1/2017. Defendants have permission to datethe med auths. | Plaintiff is subject to motion forfailure to produce medicalrecords; med authorizations notdated; plaintiff producedmedical records after motionwas filed |
| Burney,Revonda** | No Records Found Notice and medical recordsserved 7/5/2019. Med auth served to Defs on9/14/2018. | Plaintiff is subject to motionfor failure to produce medicalrecords; plaintiff producedmedical records after motionwas filed |
| Dominguez,Natasha* | Lost contact with client despite persistent, repeatedattempts. Last communication indicated medicalrecords were forthcoming. Med auth served to Defson 11/26/2017. | Plaintiff is subject to motion forfailure to produce medicalrecords |
| Gamble, Donna* | Lost contact with client despite persistent, repeatedattempts. Last communication indicated medicalrecords were forthcoming. Med auth served to Defson 8/31/2018. | Plaintiff is subject to motion forfailure to produce medicalrecords |
| Gibson,Amanda** | Treating and removal records served 10/18/19. | Plaintiff is subject to motion forfailure to produce medicalrecords; med authorizations notsigned or dated; plaintiffproduced medical records aftermotion was filed |
| Jones, Danielle* | Lost contact with client despite persistent, repeatedattempts. Last communication indicated medicalrecords were forthcoming. Med auth served to Defson 1/3/2018. | Plaintiff is subject to motion forfailure to produce medicalrecords |
| Long, Michelle* | No Records Found Notice served 7/5/19. Med authserved to Defs on 8/31/2018. | Plaintiff is subject to motion forfailure to produce medicalrecords |
| Lovda-Hamrick,Carly** | No Records Found Notice served 7/5/2019;Treatment records served 7/25/2019; and removalrecords served 10/18/2019. Med auth served toDefs on 12/8/2017. | Plaintiff is subject to motionfor failure to produce medicalrecords; med authorizationsnot dated; plaintiff producedmedical records after motionwas filed |
| McDermott,Brandi | Vendor told by provider that facility rejectedauthorization. Working with Plaintiff torectify. Med auth served to Defs on1/3/2018. | Plaintiff is subject tomotion for failure toproduce medical records |
| McNamara,Keri** | Removal billing and Implant Card with Product IDprovided. served 11/20/17; Removal records served7/5/19. Med auth served to Defs on 11/20/2017. | Plaintiff is subject to motion forfailure to produce medicalrecords; plaintiff producedmedical records after motionwas filed |
| Molnoski,Pamela** | Treating and removal records served 7/5/19. Medauth served to Defs on 11/28/2017. | Plaintiff is subject to motionfor failure to produce medicalrecords; plaintiff producedmedical records after motionwas filed |
| Mooney, April | No Records Found Notice served 11/14/2019. Medauth served to Defs on 8/31/2018. | Plaintiff is subject to motion forfailure to produce medicalrecords |
| Motes, Christina | No Records Found Notices served 7/5/2019. Medauth served to Defs on 8/31/2018. Defendants havepermission to date the med auths. | Plaintiff is subject to motion forfailure to produce medicalrecords; medauthorizations not dated |
| Mullins, Leah** | Implant ID card with product ID served 8/31/18;treating records served 7/5/19. Med auth served toDefs on 8/31/2018. | Plaintiff is subject to motionfor failure to produce medicalrecords; plaintiff producedmedical records after motionwas filed |
| Plummer,Monica* | Lost contact with client despite persistent, repeatedattempts. Med auth served to Defs on 8/31/2018. | Plaintiff is subject to motion forfailure to produce medicalrecords |
| Smith, Katrina* | Lost contact with client despite persistent, repeatedattempts. Med auth served to Defs on 8/31/2018. | Plaintiff is subject to motion forfailure to produce medicalrecords |
| Sorter, Sherah | No Records Found Notice served 7/5/2019. Medauth served to Defs on 12/8/2017. | Plaintiff is subject to motion forfailure to produce medicalrecords |
| Steppat, Jamie | Lost contact with client despite persistent, repeatedattempts. | Plaintiff is subject to motion forfailure to produce medicalrecords; med authorizations notprovided |
| Utley, Nikki*,** | Treating records served 7/5/19. Med auth served toDefs on 8/31/2018. | Plaintiff is subject to motion forfailure to produce medicalrecords; med authorizations notdated; plaintiff producedmedical records after motionwas filed. |
| Wilson, Cleo | Plaintiffs anticipate seeking dismissal of CleoWilson's case. | Plaintiff is subject to motion forfailure to produce medicalrecords |
11 Plaintiffs served medical records after Motion was filed
Plaintiffs Who Had Not Disclosed The Misrepresentations On Which They Purport to Rely
| Plaintiff | Plaintiff's Position/Date Plaintiff'sServed PFS Documents | Defendants' Position |
|---|---|---|
| Arnold, Annette | PFS Response served 8/31/2018 isadequate: "Said that it helps to preventpregnancy, 97% effective permanent birthcontrol, and that I will not have anyproblems with it." | Plaintiff is subject to motionfor failure to disclose themisrepresentations on whichshe purported to rely |
| Carey, Tina | Plaintiff did not recall relying on anywarranties. | Plaintiff is subject to motionfor failure to disclose themisrepresentations on whichshe purported to rely |
| Flud, Danielle | PFS Response served 12/1/2017 isadequate: "I read an Essure advertisementprior to my placement procedure in 2009that described the safety and efficacy ofthe product. The doctor explained theprocedure to me, and told me that it was anon- surgical placement, easily placed, aseasy as a pap smear and back to work thenext day. Never have to worry about birthcontrol again. Hormone free permanentbirth control." | Plaintiff is subject to motionfor failure to disclose themisrepresentations on whichshe purported to rely |
| Forde, Faith*, ** | PFS Response served 8/31/2018 isadequate: "Told me that Essure was apermanent birth control that was worry-free, a simple procedure, and non-surgical,so there was no down time associated. Iwas also told to get a confirmation test afew months later, and that no pregnancieswould occur after the confirmation,because my tubes were occluded."Representation List served 10/1/2019. | Plaintiff is subject to motionfor failure to disclose themisrepresentations on whichshe purported to rely; plaintiffproduced Representation Listafter motion was filed. |
| Galan, Kristina* | Plaintiff does not recall. | Plaintiff is subject to motionfor failure to disclose themisrepresentations on whichshe purported to rely |
| Guerrero, Julissa** | PFS Response served 8/31/2018 isadequate: 'I met with the nurses and theyprovided me with verbal information aboutthe product and told me a lot of benefitsthat would be the outcome of the productplacement. Representation List served7/5/2019. | Plaintiff is subject to motionfor failure to disclose themisrepresentations on whichshe purported to rely; plaintiffproduced Representation Listafter motion was filed. |
| Guzman, Elma** | PFS Response served 8/31/2018 isadequate: 'I asked Dr. Desalvo abouttubal ligation and he described theEssure procedure. He said it was safe,effective, had no downtime for recovery,and it was permanent." RepresentationList served 10/1/2019. | Plaintiff is subject to motionfor failure to disclose themisrepresentations on whichshe purported to rely; plaintiffproduced Representation Listafter motion was filed. |
| McCall, Rachel | PFS Response served 4/20/2018 isadequate: "My doctor described theEssure device and procedure tome." | Plaintiff is subject to motionfor failure to disclose themisrepresentations on whichshe purported to rely |
| McDermott, Solvidia | PFS Response served 8/31//2018 isadequate: "Dr. Posada informed meof the new procedure called Essurethat was effective." | Plaintiff is subject to motionfor failure to disclose themisrepresentations on whichshe purported to rely |
| Reasoner, Meghan* | Plaintiffs reached out to Chip Boisvert andChris Eiswerth on 6/20/2019 and7/26/2019 for consent to dismiss withoutprejudice. | Plaintiff is subject to motionfor failure to disclose themisrepresentations on whichshe purported to rely |
| Runnels, Trieste** | PFS Response served 11/20/2017 isadequate: "I was told that it was apermanent effective birth control, theywould place the coils in a non-invasiveprocedure, and then three months later Iwould have to come back for aconfirmation test. Once confirmed, I wouldbe 100% blocked and I no longer would beable to have children, and that it was notreversible, I can be active and be back onfeet in no time, wanted to do a tuballigation but was told this was a betterchoice.". Representation List was served10/01/2019. | Plaintiff is subject to motionfor failure to disclose themisrepresentations on whichshe purported to rely; plaintiffproduced Representation Listafter motion was filed. |
4 Plaintiffs served Representation Lists after Motion was filed
Plaintiffs Who Had Not Indicated When They Suspected Their Injury Was Connected To Essure
| Plaintiff | Plaintiff's Position/Date Plaintiff's ServedPFS Documents | Defendants' Position |
|---|---|---|
| Amick, Tara | Plaintiffs reached out to Chip Boisvert andChris Eiswerth on 6/20/2019 and7/26/2019 for consent to dismiss withoutprejudice. | Plaintiff is subject tomotion for failure todisclose when shesuspected her injurywas connected to Essure |
| Blackburn, Kristy* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Burgis, Mandy* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Clinger, Amber | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Cordoba, Jeannette | PFS response is adequate: " I cannot recall". | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Davis, Paula* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Dominguez, Natasha* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Drew, Rebecca* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Franklin, Alyssa* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Galan, Kristina* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Jackson, Sirena | PFS response is adequate: "Do not recall". | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Jones, Danielle* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injurywas connected to Essure. |
| King, Samantha | PFS response is adequate: "I do not recall aspecific date whenI suspected my injuries were Essure related." | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Long, Michelle* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Nieuwenhuis, Danica | PFS response is adequate: "I don't know". | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Reasoner, Meghan* | Plaintiffs reached out to Chip Boisvert andChris Eiswerth on 6/20/2019 and7/26/2019 for consent to dismiss withoutprejudice. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Silva, Marisela* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Smith, Katrina* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Stanberry, Debra | PFS response is adequate: "Do not recall" | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
| Utley, Nikki* | PFS response is adequate: "Do not recall" | Plaintiff is subject to motionfor failure to disclose whenshe suspected her injury wasconnected to Essure |
Plaintiffs Who Had Not Verified Their PFS
| Plaintiff | Plaintiff's Position/Date Plaintiff's ServedPFS Documents | Defendants' Position |
|---|---|---|
| Blackburn, Kristy* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to verify her PFS |
| Davis, Paula* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to verify her PFS |
| Drew, Rebecca* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to verify her PFS;plaintiff producedVerification after motion wasfiled. |
| Forde, Faith*, ** | Fact Sheet served with Plaintiff's SignedVerification page on 7/5/19. | Plaintiff is subject to motionfor failure to verify her PFS;plaintiff producedVerification after motion wasfiled. |
| Franklin, Alyssa* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to verify her PFS |
| Gamble, Donna* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to verify her PFS |
| Jordan, Brittnye** | Fact Sheet served with Plaintiff's SignedVerification page on7/5/19. | Plaintiff is subject to motionfor failure to verify her PFS;plaintiff producedVerification after motion wasfiled. |
| Plummer, Monica* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to verify her PFS |
| Reasoner, Meghan* | Plaintiffs reached out to Chip Boisvert andChris Eiswerth on 6/20/2019 and 7/26/2019for consent to dismiss without prejudice. | Plaintiff is subject to motionfor failure to verify her PFS |
| Silva, Marisela* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to Verify her PFS |
| Utley, Nikki* | Lost contact with client despite persistent,repeated attempts. | Plaintiff is subject to motionfor failure to verify her PFS |
3 Plaintiffs provided Verifications after the Motion was filed