Keeton v. Bayer Corporation et al

Filing 16

ORDER ADOPTING R&R AND DISMISSING CASE WITH PREJUDICE. The Court DIRECTS the Clerk of the Court to enter judgment reflecting the same. Signed by Chief Judge David R. Herndon on 1/15/2014. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
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IN RE YASMIN AND YAZ (DROSPIRENONE)
MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION

3:09-md-02100-DRH-PMF
MDL No. 2100

-----------------------------------------------------------Judge David R. Herndon

This Document Relates to:
Kari Slankster v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:11-cv12744-DRH-PMF
Christy Keeton v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:10-cv-11960DRH-PMF
ORDER
HERNDON, Chief Judge:

This matter is before the Court on Bayer’s motions to show cause why the
claims of the above captioned plaintiffs should not be dismissed for failure to
comply with the document preservation requirements in Case Management Order
Number 61 (“CMO 61”) (Doc. 2740). Specifically, Bayer’s motions to show cause
relate to the subject plaintiffs’ alleged failure to comply with the requirements of
CMO 61 § I.D. 1 Bayer’s motions to show cause seek dismissal of the subject
plaintiffs’ claims in accord with the provisions of Section I.E. of CMO 61. 2

1

Section I.D. relates to the service of copies of Notices upon Bayer counsel.
Pursuant to Section I.E of CMO 61, Gallbladder Plaintiffs who fail to fully comply with these
requirements shall be given notice of such failure by e-mail or fax from Defendant’s Liaison
Counsel or his designee and shall be provided ten (10) additional days to cure such deficiency
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1

Pursuant to Section I.E. of CMO 61, each plaintiff had 30 days to respond
to Bayer’s motion to show cause. In both cases, plaintiffs’ counsel filed motions to
withdraw as counsel of record after Bayer filed the subject motions (Slankster
Doc. 10; Keeton Doc. 13). The Court granted the motions to withdraw (Slankster
Doc. 11; Keeton Doc. 14). The orders granting the motions to withdraw extended
the plaintiffs’ responsive pleading time and stated as follows:
In light of the plaintiff's need to obtain new counsel, the Court will
extend the plaintiff's responsive pleading deadline. The plaintiff,or
her new counsel, is given 60 days from the date this order is entered
to file a responsive pleading to the pending motion to show cause
(Doc. 10). If plaintiff or her new counsel fail to file a response to the
pending motion to show cause, her case will be subject to dismissal
WITH PREJUDICE in accord with the provisions of CMO 61.
(Slankster Doc. 11).
In light of the plaintiffs need to obtain new counsel, the Court will
extend the plaintiffs responsive pleading deadline. The plaintiff, or
her new counsel, is given 60 days from the date this order is entered
to file a responsive pleading to the pending motion to show cause
(Doc. 10). If plaintiff or her new counsel fail to file a response to the
pending motion to show cause, her case will be subject to dismissal
WITH PREJUDICE in accord with the provisions of CMO 61.
(Keeton Doc. 14)
Neither plaintiff filed any such response. At the expiration of the responsive
pleading time, the motions were considered by Special Master Stephen

(“Cure Period”).” Section I.E. goes on to provide that “[n]o other extensions will be granted unless
agreed to by all Parties”; “[i]f Plaintiff fails to cure the deficiency within the Cure Period,
Defendant’s Liaison Counsel or his designee may file a Rule to Show Cause why the Gallbladder
Claim should not be dismissed with prejudice”; “[p]laintiff shall thereupon have thirty (30) days to
respond to the Rule to Show Cause”; and “[a]ny failure to respond to the Motion within the
required period of time shall lead to the dismissal of the Gallbladder Claim with prejudice, except
for good cause shown.”

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Saltzburg. 3 Special Master Saltzburg reviewed the pleadings and the requirements
of CMO 61 and filed a report and recommendation regarding each motion to show
cause (Slankster Doc. 12; Keeton Doc. 15). In each case, Special Master
Saltzburg found that the subject plaintiff failed to comply with the requirements of
CMO 61 and recommended that the subject plaintiff’s claims be dismissed with
prejudice in accord with the requirements of CMO 61.
The parties were given 14 days to respond or object to Special Master
Saltzburg’s report and recommendation. In each case, the 14 day deadline for
responding or objecting to the Special Master’s report has expired. Neither
plaintiff has responded or objected in any way.
Upon consideration of Bayer’s motions to dismiss, the Special Master’s
recommendations, and the requirements of CMO 61, the Court finds that each
subject plaintiff has failed to comply with Section I.D. of CMO 61. Therefore, the
above captioned plaintiffs’ claims are subject to with prejudice dismissal (see
section I.E. of CMO 61).
Specifically, with regard to each of the above captioned plaintiffs, the Court
finds as follows:

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Section III of CMO 61 provides as follows: “The Court, by this Order, appoints Professor
Stephen Saltzburg as Special Master to hear all motions regarding compliance with this Order,
including motions directed to the sufficiency of the expert reports required under subparagraphs
II (A) (5) and (6) above, and to recommend to this Court a ruling on each of the motions.” (Doc.
2740 § III).

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Kari Slankster v. Bayer HealthCare Pharmaceuticals Inc., et al. No. 3:11cv-12744-DRH-PMF
The plaintiff failed to comply with § I.D. of CMO 61. The Court adopts
Special Master Saltzburg’s report and recommendation as to this plaintiff. The
plaintiff’s claims are therefore DISMISSED WITH PREJUDICE for failure to
comply with the requirements of CMO 61.
Further, the Court DIRECTS the Clerk of the Court to enter Judgment
reflecting the same.
Christy Keeton v. Bayer HealthCare Pharmaceuticals Inc., et al. No. 3:10cv-11960-DRH-PMF
The plaintiff failed to comply with § I.D. of CMO 61. The Court adopts
Special Master Saltzburg’s report and recommendation as to this plaintiff. The
plaintiff’s claims are therefore DISMISSED WITH PREJUDICE for failure to
comply with the requirements of CMO 61.
Further, the Court DIRECTS the Clerk of the Court to enter Judgment
reflecting the same.
SO ORDERED:

Digitally signed by
David R. Herndon
Date: 2014.01.15
11:59:31 -06'00'
Chief Judge
United States District Court

Date: January 15, 2014

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