Jennifer Dzik v. Bayer Corporation, et al
Filing
Filed opinion of the court PER CURIAM. AFFIRMED. William J. Bauer, Circuit Judge; Joel M. Flaum, Circuit Judge and Michael S. Kanne, Circuit Judge. [6811560-1] [6811560] [16-1333]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1333
JENNIFER DZIK,
Plaintiff‐Appellant,
v.
BAYER CORPORATION, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 10‐cv‐20389 — David R. Herndon, Judge.
____________________
ARGUED OCTOBER 5, 2016 — DECIDED JANUARY 13, 2017
____________________
Before BAUER, FLAUM, and KANNE, Circuit Judges.
PER CURIAM. Jennifer Dzik challenges the dismissal of her
personal‐injury suit after the law firm she retained (which
continues to represent her in this appeal) ignored a legiti‐
mate discovery request for more than a year, flouted the re‐
quirements of a case‐management order, and failed to re‐
spond to a motion to dismiss. Given these lapses, we con‐
clude that the district court acted well within its discretion in
dismissing the action.
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This lawsuit is one of thousands consolidated for pretrial
proceedings as part of multidistrict litigation in the Southern
District of Illinois. Dzik alleges that she suffered a venous
thromboembolism (or “VTE,” a blood clot in a deep vein)
because she was using the drug Yasmin, a prescription birth
control pill marketed by the defendants, a group of related
pharmaceutical companies collectively known as Bayer. But
medical records Dzik disclosed during discovery revealed
that she last had filled a Yasmin prescription ten months be‐
fore her injury. When Bayer began probing the ten‐month
gap, Dzik’s counsel of record (Chattanooga, Tennessee, at‐
torneys Marvin Berke and Megan England) “suggested” that
her doctor had provided samples of Yasmin shortly before
Dzik suffered the VTE. Bayer then requested additional
medical records or even an affidavit from Dzik’s doctor sub‐
stantiating her use of the drug near the time of her injury.
That was in May 2014, but Dzik’s counsel simply ignored
Bayer’s discovery request over the next fifteen months.
Meanwhile, Bayer settled many of the other cases in the con‐
solidated litigation, prompting the district court to enter a
case‐management order in August 2015 to resolve those still
pending. That order created two tracks: Section II governed
cases in which the parties could agree that further negotia‐
tions might prove fruitful, and Section III applied to all other
cases. Under Section II, “counsel for any plaintiff who be‐
lieves additional efforts to settle a particular VTE case may
be productive” had sixty days to notify Bayer that the party
wished to continue negotiations; Bayer then had thirty days
to respond, and, if the parties were in agreement, the case
would be stayed for sixty to ninety days to facilitate settle‐
ment. For all other cases—including VTE cases in which set‐
tlement efforts had stalled—Bayer was tasked with notifying
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the plaintiff’s counsel within fifty days that her lawsuit was
subject to Section III. Absent a timely objection prompting
movement of the case to the settlement track, a plaintiff sub‐
ject to Section III had 120 days to provide Bayer with a Plain‐
tiff Fact Sheet, certain medical and pharmacy records, and a
report from an expert addressing whether Yasmin caused
the plaintiff’s injury. The order also specified that, for any
plaintiff who failed to comply, Bayer should promptly move
to dismiss with prejudice after the deadlines lapsed. Finally,
the order provided for automatic dismissal with prejudice
should any plaintiff fail to oppose, within fourteen days, a
properly filed motion to dismiss.
Dzik’s attorneys did not invoke Section II of the case‐
management order by telling Bayer that settlement talks
could be productive. Instead, in September 2015 (seven
weeks after entry of the case‐management order) Bayer sent
an e‐mail notifying attorneys Berke and England that Dzik’s
case was subject to Section III, which obligated her either to
dispute that classification or else comply with the discovery
requirements in the case‐management order. Berke and Eng‐
land did not respond.
Then on December 18, 2015, Bayer moved to dismiss sev‐
eral dozen cases, including Dzik’s. Dzik failed to respond to
that motion within the fourteen days allotted by the case‐
management order, and on January 11, 2016, the district
court entered judgment dismissing her suit with prejudice.
Attorney Berke, who at that point had taken no action in
the case for nearly two years, responded to the dismissal by
filing—the very next day—a motion to set aside the dismis‐
sal. England, his co‐counsel of record, is not named in that
filing; instead a new lawyer, Charles Flynn, is listed with
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Berke as counsel. Berke asserted that Bayer had mistakenly
treated Dzik’s case as one subject to Section III of the case‐
management order, even though, the lawyer insisted, she
should be in the Section II track to allow for further settle‐
ment discussions. Moreover, Berke continued, his failure to
oppose the motion to dismiss should be deemed “excusable
neglect” because he had missed seeing Bayer’s motion while
traveling to celebrate his fiftieth wedding anniversary. Berke
said nothing at all about why he had failed to oppose the
Section III designation when Bayer sent its e‐mail three
months before the motion to dismiss was filed. Neither did
he explain why the lawsuit had not been monitored in his
absence by England or Flynn (or anyone else at the firm).
Bayer opposed Dzik’s effort to reinstate her lawsuit, and the
district court denied her motion.
In this appeal the parties address the ruling on Dzik’s
postjudgment motion and the underlying dismissal of her
lawsuit as if those two decisions present distinct issues, but
really they do not. We address that inquiry by evaluating
both rulings together, and start by noting that the affidavits
submitted by Dzik’s attorneys with their postjudgment mo‐
tion directly contradict the sworn account provided by
Bayer’s counsel. Along with the anniversary‐trip excuse,
Berke attests in his affidavit: “Attorneys from Affiant’s office
have been in contact with liaison counsel within the last 90
days. After these discussions Affiant determined that an ad‐
ditional medical record was needed and has proceeded to
try to obtain that.” Flynn (the other attorney whose name
appears on the postjudgment motion) likewise attests in his
affidavit that “attorneys” from his office had negotiated the
case within the previous ninety days, and that he “did not
receive” an electronic notice that Bayer’s motion to dismiss
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had been filed (the second representation undoubtedly is
true, since even now Flynn has not entered an appearance in
the district court).
An attorney with Shook Hardy & Bacon, Bayer’s settle‐
ment counsel, responded with an affidavit recounting that
Dzik’s lawyers never responded after Bayer had requested
additional medical records or an affidavit from her physician
substantiating Dzik’s use of Yasmin. The lawyer gave a pre‐
cise date in May 2014—nearly two years before the case was
dismissed—when communication with Dzik’s lawyers last
occurred. Bayer’s lawyer also named the attorney at his firm
who had sent Berke the e‐mail requesting evidence that Dzik
used Yasmin after filling the final prescription. And the law‐
yer swore that his firm had not received “further communi‐
cation of any kind from plaintiffs prior to the filing of their
motion for relief from the judgment.” Moreover, Bayer’s
lawyer attested that, before submitting his affidavit, he had
“reviewed our records and discussed the matter with other
attorneys at my firm to confirm my recollection of the histo‐
ry of negotiations.” Berke replied to Bayer’s response but
said nothing further in the district court about his sworn
representation that his firm’s “attorneys” had communicated
with Bayer’s defense team within ninety days of dismissal.
Yet at oral argument when we pressed Berke to tell us
whether his firm had taken any action in Dzik’s lawsuit in
the eighteen months preceding its dismissal, he revived his
assertion that communications had taken place between the
parties’ lawyers, though he did not name any lawyer for ei‐
ther side who supposedly had participated. Instead he told
us that there is “no question” that negotiations had taken
place within ninety days of dismissal, and he even went so
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far as to assert that both sides’ affidavits say so. Plainly, the
affidavit from Bayer’s lawyer says no such thing.
We are troubled by the degree to which these accounts
directly contradict. And though it is possible that Bayer’s
lawyer is mistaken, we see no reason to draw that conclu‐
sion. For one thing, Berke’s firm presently has only four at‐
torneys (two named Berke, and two named Flynn), so his
inability to name the “attorneys” at the firm who purported‐
ly negotiated with Bayer’s lawyer is a red flag. It also seems
that, after Megan England (Berke’s original co‐counsel) left
the firm, Flynn never entered an appearance in the district
court. Conversely, Bayer provided the district court with a
detailed timeline, including the date and name of the attor‐
ney who last communicated with anyone representing Dzik.
While we can’t be certain that “attorneys” from Berke’s firm
didn’t try to contact Bayer within ninety days of dismissal,
the vagueness of the affidavits from plaintiff’s counsel and
Berke’s misrepresentation at oral argument about the affida‐
vit from Bayer’s lawyer leads us to think it more likely that
the case slipped through the cracks, with no attorney (or
paralegal or secretary) monitoring it, leaving Berke and
Flynn scrambling to salvage what their motion for reconsid‐
eration concedes was “neglect” by the firm.
What is more, the affidavits from Dzik’s lawyers say
nothing relevant to excuse the inattention that led to the
dismissal. Berke and Flynn do not challenge Bayer’s version
of events, including that their firm ignored the company’s
May 2014 request for evidence that Dzik took Yasmin short‐
ly before her injury. (Indeed, this discovery request never
was fulfilled.) Nor have Dzik’s lawyers denied that they
failed to comply with the requirements of the case‐
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management order under either Section II (to affirmatively
notify Bayer and engage in active negotiations) or under Sec‐
tion III (to provide discovery and expert reports in prepara‐
tion for trial). Rather, counsel argue that Dzik’s case never
should have been placed in the Section III “track” because
she alleges a VTE. And, they continue, the district court
erred in denying the motion for relief in light of Berke’s con‐
tention that his vacation constituted “excusable neglect” ex‐
onerating the law firm’s inaction when Bayer moved to dis‐
miss.
Dzik’s argument that her case belonged in Section III
rests on a misreading of the district court’s case‐
management order. Dzik’s lawyers assert that Section II
governs all cases alleging VTE injuries and that Section III
applies only to lawsuits alleging that Yasmin caused other
types of injuries. But nothing in the language of the court’s
order could lead to this reading. Both sections of the order
govern plaintiffs alleging VTE injuries; the separate “tracks”
distinguish between those plaintiffs still in active negotia‐
tions and those whose cases should move toward trial be‐
cause efforts were not fruitful. Dzik’s argument that no case
alleging a VTE injury should be subject to dismissal under
Section III contradicts the unambiguous language of the or‐
der. Berke’s insistence at argument that “all the lawyers” in
his office have now read the case‐management order but still
cannot understand how Dzik’s case “became” subject to Sec‐
tion III is preposterous—the order is crystal clear.
More disturbing is Dzik’s repeated assertion to us that
Bayer told the district court that she “did not suffer a VTE
despite actual knowledge that she did.” This representation
is unfounded. Bayer never told the district court that Dzik
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“did not endure a VTE,” as her counsel allege. Rather, Bayer
correctly represented that Dzik had not complied with the
court’s case‐management order. Dzik’s counsel had ample
opportunity to dispute the “Section III” classification and,
indeed, to satisfy Bayer’s request—more than a year earli‐
er—for evidence that Dzik took Yasmin near the time of her
injury.
Dzik’s remaining argument fares no better. She contends
that her lawyers “acted in good faith towards bringing this
case to a resolution” and, for that reason, the dismissal
should be set aside even if we conclude that Section III of the
case‐management order applied. Dzik reasons that, because
Berke was out of state when Bayer moved for dismissal, the
firm’s failure to respond resulted from surprise or excusable
neglect. Dzik’s lawyers—Berke and Flynn—explain that the
job of a plaintiff’s lawyer “consists of mostly nothing, sprin‐
kled in with the occasional update to the client.” Less should
be expected of them, they infer, in contrast with Bayer’s
lawyers, who have “lived and breathed these cases.”
This argument is absurd. By focusing on the three weeks
during which they ignored Bayer’s motion to dismiss, Berke
and Flynn gloss over their failure to do anything to advance
Dzik’s case over the previous eighteen months, including
not providing discovery. We have explained that “attorney
inattentiveness to litigation is not excusable, no matter what
the resulting consequences the attorney’s somnolent behav‐
ior may have on a litigant.” Harrington v. City of Chicago, 433
F.3d 542, 546 (7th Cir. 2006) (quoting Easley v. Kirmsee, 382
F.3d 693, 698 (7th Cir. 2004). And counsel have not even
suggested that, if the lawsuit had not been dismissed, Dzik
could have complied with Bayer’s discovery demand and
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substantiated their firm’s representation that, despite not fill‐
ing a Yasmin prescription for nearly a year preceding her
injury, Dzik was still taking the drug. Their brief also fails to
explain why Flynn (who, presumably, was not vacationing
with Berke and his wife) was not watching the case while
Berke was away. Furthermore, nearly four months elapsed
between Bayer’s e‐mail to Dzik’s counsel identifying her
case as subject to Section III and the court’s dismissal, yet
counsel took no (documented) action during that period.
District courts handling complex, multidistrict litigation
“must be given wide latitude with regard to case manage‐
ment” in order to achieve efficiency. In re Asbestos Prods.
Liab. Litig. (No. VI), 718 F.3d 236, 243, 246–48 (3rd Cir. 2013);
accord In re Guidant Corp. Implantable Defibrillators Prods. Liab.
Litig., 496 F.3d 863, 867–68 (8th Cir. 2007); In re Phenylpro‐
panolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1252–53
(9th Cir. 2006). That discretion extends to dismissing indi‐
vidual suits for noncompliance with the court’s orders, in‐
cluding discovery orders. In re Guidant Corp., 496 F.3d at
867–68; In re PPA Prods. Liab. Litig., 460 F.3d at 1252–53. Con‐
sidering that Dzik’s lawyers—in their own words—did
“mostly nothing” after filing this lawsuit, the district court
did not abuse its discretion by dismissing the case with prej‐
udice.
The judgment of the district court is AFFIRMED.
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