Konecki v. C.R. Bard, Inc.
| Decision Date | 22 September 2021 |
| Docket Number | CIVIL 1:20-CV-347-LY |
| Parties | NIKI[1] KONECKI, Plaintiff v. C. R. BARD, INC. and BARD PERIPHERAL VASCULAR, INC. Defendants |
| Court | U.S. District Court — Western District of Texas |
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court are Defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 41(b), filed April 7, 2021 (Dkt. 27); Plaintiff's Response in Opposition to Defendants' Rule 41(b) Motion to Dismiss, filed April 21 2021 (Dkt. 28); and Defendants' Reply, filed April 27 2021 (Dkt. 30). The District Court referred all pending and future nondispositive and dispositive motions to the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Dkt. 29.
This product liability case is one of more than 8, 000 lawsuits filed in a multidistrict litigation proceeding (“MDL”) against Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively, “Bard”). Bard manufactures and markets medical devices, including inferior vena cava (“IVC”) filters.
The IVC is a large vein that returns blood to the heart from the lower body. An IVC filter is a small device implanted in the IVC to catch blood clots before they reach the heart and lungs. The MDL Plaintiffs received implants of Bard's IVC filters, which Plaintiffs claim are defective and have caused them to suffer serious injury or death. The MDL Plaintiffs allege that Bard's IVC filters are more dangerous than others because they have higher risks of tilting, fracturing, perforating the IVC, and migrating to vital organs. Plaintiffs further allege that Bard failed to warn patients and physicians about these higher risks. Defendants dispute the allegations, contending that Bard filters are safe and effective, their complication rates are low and comparable to those of other IVC filters, and the medical community is aware of the risks associated with IVC filters.
The MDL was formed to centralize all pretrial proceedings and complete all common fact and expert discovery concerning Bard's IVC filters. In August 2015, the Judicial Panel on Multidistrict Litigation assigned the MDL to the Honorable David G. Campbell, Senior United States District Judge of the U.S. District Court for the District of Arizona, in order to centralize all pretrial proceedings. Dkt. 5 at 1. After all common fact and expert discovery concerning the Bard IVC filters was completed, Judge Campbell transferred each pending direct-filed case to the district identified in the short form complaint, pursuant to 28 U.S.C. § 1404(a).
Plaintiff Niki Konecki originally filed this case on April 26, 2017 in the District of Arizona on behalf of her deceased mother, Margaret A. McWilliams. In Re Bard IVC Filters Products Liability Litigation, MDL No. 15-02641-PHX-DGC (D. Ariz. April 26, 2017) (Dkt. 1). On March 10, 2005, McWilliams' physician, Carlos Obregon, D.O., implanted a Bard Vena Cava Filter device (“Device”) in McWilliams' left leg to treat deep vein thrombosis. Dkt. 25-1 at 9. Plaintiff alleges that on June 27, 2016, McWilliams' Device fractured and perforated Plaintiff's vena cava, causing internal bleeding and eventually her death in August 2016. Id. at 17. Bard denies that the Device caused McWilliams' death and contends that she died from complications associated with advanced stage peritoneal cancer. Konecki Dep. (Dkt. 25-4) 102:8-103:15. Plaintiff alleges state law claims of manufacturing defect, failure to warn, design defect, negligence, negligent misrepresentation, negligence per se, breach of express warranty, breach of implied warranty, fraudulent concealment, wrongful death, and punitive damages. Dkt. 1 ¶ 12.
On April 1, 2020, the U.S. District Court for the District of Arizona transferred this case to the Western District of Texas. Dkt. 6. On June 17, 2020, the District Court entered a Scheduling Order providing that fact discovery would be completed by January 15, 2021. Dkt. 20 at 2. The parties agreed to use the authorizations for medical records and fact sheets used in the MDL in lieu of written discovery. Dkt. 25 at 2.
During Plaintiff's deposition on December 21, 2020, Plaintiff testified that she was not the executor or administrator of McWilliams' estate and that the estate had not been administered. Konecki Dep. (Dkt. 25-4) 103:23-104:4. On February 4, 2021, Bard filed an Unopposed Motion to Stay the case for sixty days to allow Plaintiff to administer the estate of decedent McWilliams. In support, Bard stated:
This case has proceeded under the assumption that Ms. Konecki has the legal right to pursue claims on behalf of decedent McWilliams, but in fact, Bard learned recently that no estate administration has been established. Bard has been unable to obtain medical and other records regarding the decedent, because Ms. Konecki does not have authority to sign the records authorizations. Discovery cannot proceed, and Bard cannot adequately evaluate Ms. Konecki's claims and defend against them, unless and until an estate representative provides properly executed records authorizations and records are obtained.
Dkt. 25 at 1. Accordingly, Bard requested that the case be stayed for sixty days “for Plaintiff to undertake a proper estate administration for McWilliams and to execute proper authorizations so that Bard may obtain the medical records needed to defend Plaintiff's claims.” Id. at 3. On February 5, 2021, the District Court granted the Unopposed Motion to Stay. Dkt. 26.
On April 7, 2021, Bard filed the instant Motion to Dismiss under Federal Rule of Civil Procedure 41(b) for failure to prosecute and comply with the District Court's February 5, 2021 Order. Defendant contends that Plaintiff has neither administered McWilliams' estate nor provided Bard with valid medical release authorizations as ordered. Accordingly, Bard argues that Plaintiff's case must be dismissed under Rule 41(b).
In response, Plaintiff does not dispute that she did not undertake an estate administration or provide Bard with valid medical release authorizations for McWilliams during the stay. However, Plaintiff argues that a stay was not necessary for Bard to obtain McWilliams' medical records because it could have obtained those medical records by following the procedures outlined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and corresponding regulations. In addition, Plaintiff avers that she was not required to undertake an administration of McWilliams' estate under Texas law.
Bard acknowledges in its reply brief that it may seek McWilliams' medical records under HIPAA and thus has withdrawn its request to dismiss the case on that basis. See Dkt. 30 at 1 (). Bard nonetheless seeks to dismiss this case under Rule 41(b), asserting that Plaintiff (1) violated a court order and failed to prosecute case by failing to undertake a proper estate administration, and (2) has failed to establish that she has the capacity to sue on behalf of McWilliams' estate.
Federal Rule of Civil Procedure 41(b) provides that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” “Rule 41(b) allows the district court to dismiss an action upon the motion of a defendant, or upon its own motion, for failure to prosecute.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). This authority is based on the “courts' power to manage and administer their own affairs to ensure the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962).
A dismissal with prejudice under Rule 41(b) “is an extreme sanction that deprives the litigant of the opportunity to pursue [her] claim.” Berry, 975 F.2d at 1191. Therefore, dismissals with prejudice for failure to prosecute are proper “only when (1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the district court employed lesser sanctions that proved to be futile.” Campbell v. Wilkinson, 988 F.3d 798, 802 (5th Cir. 2021) (quoting Berry, 975 F.2d at 1191). Additionally, in most cases in which the Fifth Circuit has affirmed dismissals with prejudice under Rule 41(b), it has found at least one of three aggravating factors: “(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.” Id.
The Court considers in turn Bard's arguments concerning Plaintiff's asserted failure to prosecute and her capacity.
Bard argues that this case should be dismissed under Rule 41(b) because Plaintiff violated the District Court's February 5, 2021 Order and failed to prosecute this case by not undertaking a proper estate administration during the stay. The Court disagrees.
Plaintiff did not violate the District Court's February 5, 2020 Order. While Bard's Motion to Stay requested “that should Ms. Konecki not take the necessary steps to administer the estate and provide valid authorizations within that time that the case be dismissed for failure to properly prosecute, ”[2] the District Court did not include that...
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