Emily Heth, et al v. Wyeth, Inc., et al

Filing

PER CURIAM OPINION FILED - THE COURT: STEVEN M. COLLOTON, RAYMOND W. GRUENDER and BOBBY E. SHEPHERD (UNPUBLISHED); Granting [3722464-2] motion to substitute party filed by Mr. Erik Brett Walker. [3815510] [10-2478]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-2478
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In re: Prempro Products Liability
Litigation,
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*
*
*
*
Emily Heth; Martin Heth,
*
*
Plaintiff-Appellants,
* Appeal from the United States
v.
* District Court for the
* Eastern District of Arkansas.
Wyeth, Inc; Wyeth Pharmaceuticals,
*
Inc.,
* [UNPUBLISHED]
*
Defendants-Appellees.
*
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Submitted: January 14, 2011
Filed: August 8, 2011
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Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
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PER CURIAM.

Appellate Case: 10-2478

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Date Filed: 08/08/2011 Entry ID: 3815510

Appellants seek reversal of the district court’s1 dismissal of this action for
failure to prosecute. We affirm.2
In 2004, Emily Heth and Martin Heth brought an action against Wyeth, Inc.
and Wyeth Pharmaceuticals, Inc. (collectively “Wyeth”), for claims based on Emily’s
development of breast cancer allegedly resulting from her use of hormone therapy.
The complaint was filed in the District of Montana, the Heths’ domicile, but the
Judicial Panel on Multidistrict Litigation (MDL) transferred the case to the Eastern
District of Arkansas for discovery and pretrial proceedings.
In September 2005, Emily died in an automobile accident. Martin was
appointed personal representative of Emily’s estate, and in April 2007, the estate was
closed. Between August 2006 and February 2008, of the thousands of pending
lawsuits, three representative trials were conducted while the court stayed the
remainder of the actions, including this one. On March 23, 2010, the district court
selected this case along with 199 others for limited, case-specific discovery. The
court entered an April 1 order directing the plaintiffs in the 200 cases to provide
defendants with updated medical authorization forms and warned that failure to do
so could result in dismissal of their complaints for failure to prosecute. On May 11,
Wyeth moved for dismissal of those actions, including this one, in which it had not
received an updated medical authorization form. The district court gave plaintiffs
until 5:00 PM on May 19 to provide the updated form and again warned that failure
to do so could result in dismissal for failure to prosecute.

1

The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.
2

We grant Martin Heth’s motion to be substituted for his deceased wife Emily
Heth. See Fed. R. App. P. 43(a).
-2-

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Date Filed: 08/08/2011 Entry ID: 3815510

On May 24, Wyeth moved to dismiss the Heths’ action. Martin responded to
the motion by informing the court that Emily’s estate had been closed and that efforts
were being made to reopen the estate and obtain the required updated medical
authorization form. The district court dismissed the action for failure to prosecute.
The district court also denied a post-judgment motion for relief. This appeal follows.
Under Rule 41(b) of the Federal Rules of Civil Procedure, a district court
retains discretion to dismiss an action when “the plaintiff fails to prosecute or to
comply with [the Federal Rules] or a court order.” Fed. R. Civ. P. 41(b). We review
such dismissals for abuse of discretion. Smith v. Gold Dust Casino, 526 F.3d 402,
404, 404-05 (8th Cir. 2008). Dismissal “must be proportionate to the litigant’s
transgression” and “used only in cases of willful disobedience of a court order.” Id.
at 405 (quotations omitted). We also recognize, however, that “administering cases
in multidistrict litigation is different from administering cases on a routine docket.”
In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867
(8th Cir. 2007) (quoting In re Phenylopropanolamine Prod. Liab. Litig., 460 F.3d
1217, 1229 (9th Cir. 2006)). To that end, “MDL courts must be given greater
discretion to organize, coordinate and adjudicate its proceedings, including the
dismissal of cases for failure to comply with its orders.” Id.
In both the initial April 1 order directing plaintiffs to supply the updated
medical authorization and the second order setting a firm deadline of May 19 for
compliance, the district court warned that failure to comply could result in dismissal
for failure to prosecute. Over five weeks passed between entry of the April 1 order
and when the Heths’ attorneys contacted Martin about reopening the estate. Also, it
was not until Wyeth filed the first motion to dismiss on May 11 that the Heths’
attorneys began communications with Wyeth’s attorneys about Emily’s death and
attempts to reopen her estate. After the May 19 deadline passed without an updated
medical authorization form, Wyeth moved to dismiss this action along with twelve
others. The district court dismissed for failure to prosecute.
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Date Filed: 08/08/2011 Entry ID: 3815510

In consideration of the discretion given district courts to administer MDL cases
and in light of facts demonstrating derelict oversight of this case by the Heths’
counsel, the district court did not abuse its discretion when it dismissed this action for
failure to prosecute.
Accordingly, we affirm.
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Date Filed: 08/08/2011 Entry ID: 3815510