Asel v. Bayer Corporation et al

Filing 8

ORDER granting 7 Motion to Dismiss. Signed by Chief Judge David R. Herndon on 5/5/2011. (dsw)

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

3:09-md-02100-DRH-PMF
MDL No. 2100
ORDER REGARDING
PFS COMPLIANCE and
DISMISSING CERTAIN
ACTIONS WITHOUT
PREJUDICE

This Document Relates to:
Petra Asel v. Bayer Corp., et al.

No. 3:10-cv-12527-DRH-PMF

Lauren Baker v. Bayer Corp., et al.

No. 3:10-cv-12644-DRH-PMF

Ashley Blackard v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-12230-DRH-PMF

Shawna Carter v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-13225-DRH-PMF

Vanessa Cervantes v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-13014-DRH-PMF

Jill Day v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-12389-DRH-PMF

Autumn Dickson v. Bayer Corp., et al.

No. 3:10-cv-12921-DRH-PMF

Ashley Flynt v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-12485-DRH-PMF

Tanya Lynch v. Bayer Corp., et al.

No. 3:10-cv-12626-DRH-PMF

Rosslyn McCrae v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-12198-DRH-PMF

Ellen Miller v.

No. 3:10-cv-10813-DRH-PMF

Bayer HealthCare Pharmaceuticals Inc., et al.
Kewona Richards v. Bayer Corp., et al.

No. 3:10-cv-11021-DRH-PMF

Janett Vargas v. Bayer Corp., et al.

No. 3:10-cv-12138-DRH-PMF

ORDER
HERNDON, Chief Judge:
This matter is before the Court on Defendant Bayer HealthCare
Pharmaceuticals Inc.’s (“Bayer”) motion, pursuant to Case Management Order 12
(“CMO 12”), for an Order dismissing Plaintiffs’ claims, in the above-captioned
matters, without prejudice for failure to comply with their Plaintiff Fact Sheet
(“PFS”) obligations.1 Bayer contends that the Plaintiffs in the above-captioned
matters were required to serve a completed PFS on or before February 24, 2011
but have not done so. 2
Under Section E of CMO 12, Plaintiffs were given 14 days from the
date of Defendant’s motion, in this case 14 days from April 12, 2011, to file a
response either certifying that they served upon Defendants and Defendants

1

Under Section C of CMO 12, each Plaintiff is required to serve Defendants with a
completed PFS, including a signed Declaration, executed record release
Authorizations, and copies of all documents subject to the requests for
production contained in the PFS which are in the possession of Plaintiff. Section
B of CMO 12 further provides that a completed PFS is due “45 days from the date
of service of the first answer to her Complaint or the docketing of her case in this
MDL, or 45 days from the date of this Order, is whichever is later.”
2
See e.g., Miller v. Bayer HealthCare Pharmaceuticals Inc., No. 3:10-cv-10813DRH-PMF Doc. 5, Doc. 5-1, and Doc. 5-2.

received a completed PFS, and attaching appropriate documentation of receipt or
an opposition to Defendant’s motion.3
To date, only two of the Plaintiffs in the above captioned member
actions have filed a response:
1. Plaintiff Kewona Richards (Kewona Richards v. Bayer Corp., et al.No.
3:10-cv-11021-DRH-PMF) filed the requisite response on May 3, 2011 (Doc.
9). Thereafter Defendants filed a notice of non-opposition to plaintiff
Richards’ response (Doc. 10).
2. Plaintiff Janett Vargas (Janett Vargas v. Bayer Corp., et al. No. 3:10-cv12138-DRH-PMF) filed the requisite response on May 3, 2011 (Doc. 9).
Thereafter Defendants filed a notice of non-opposition to plaintiff Richards’
response (Doc. 10).

3

Responses to Bayer’s motion to dismiss were due 14 days from April 12, 2011
regardless of any response date automatically generated by CM/ECF. The Court
has previously noted in orders in this MDL and during a status conference in this
MDL that when deadlines provided by CM/ECF conflict with orders of this
Court, the Court ordered deadline will always control. See United States
District Court for the Southern District of Illinois, Electronic Filing Rules,
Rule 3 (The “filer is responsible for calculating the response time under the
federal and/or local rules. The date generated by CM/ECF is a guideline only,
and, if the Court has ordered the response to be filed on a date certain, the
Court's order governs the response deadline.”). The deadlines provided by
CM/ECF are generated automatically based on the generic responsive pleading
times allowed under the rules and do not consider special circumstances (such as
court orders specific to a particular case or issue).

Accordingly, the Court ORDERS as follows:
With regard to plaintiff Kewona Richards (Kewona Richards v. Bayer
Corp., et al.No. 3:10-cv-11021-DRH-PMF) and plaintiff Janett Vargas (Janett
Vargas v. Bayer Corp., et al. No. 3:10-cv-12138-DRH-PMF) the motion to dismiss
is DENIED.
The plaintiffs in the remaining eleven member actions (where no
responsive pleading was filed), have failed to comply with the PFS obligations
under CMO 12. Therefore the following member actions are DISMISSED
WITHOUT PREJUDICE for failure to comply with the requirements of CMO 12.
Petra Asel v. Bayer Corp., et al.

No. 3:10-cv-12527-DRH-PMF

Lauren Baker v. Bayer Corp., et al.

No. 3:10-cv-12644-DRH-PMF

Ashley Blackard v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-12230-DRH-PMF

Shawna Carter v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-13225-DRH-PMF

Vanessa Cervantes v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-13014-DRH-PMF

Jill Day v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-12389-DRH-PMF

Autumn Dickson v. Bayer Corp., et al.

No. 3:10-cv-12921-DRH-PMF

Ashley Flynt v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-12485-DRH-PMF

Tanya Lynch v. Bayer Corp., et al.

No. 3:10-cv-12626-DRH-PMF

Rosslyn McCrae v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-12198-DRH-PMF

Ellen Miller v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:10-cv-10813-DRH-PMF

Further, the Court reminds Plaintiffs that, pursuant to CMO 12
Section E, unless Plaintiffs serve Defendants with a COMPLETED PFS or
move to vacate the dismissal without prejudice within 60 days after entry of
this Order, the Order will be converted to a Dismissal With Prejudice upon
Defendants’ motion.

SO ORDERED

Digitally signed by
David R. Herndon
Date: 2011.05.05
16:18:40 -05'00'
Chief Judge
United States District Court

Date: May 5, 2011