Pickard v. Bayer Corporation et al

Filing 7

ORDER granting 6 Motion to Dismiss. Signed by Chief Judge David R. Herndon on 6/28/2011. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS

IN RE: YASMIN AND YAZ
(DROSPIRENONE) MARKETING, SALES
PRACTICES AND PRODUCTS LIABILITY
LITIGATION

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

This Document Relates to:
Christina Allmon v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-11333-DRH-PMF

Sarah Anderson v. Bayer Corp., et al.

No. 3:10-cv-12663-DRH-PMF

Victoria Blanchfield v. Bayer Corp., et al.

No. 3:10-cv-12661-DRH-PMF

Dagmar Breeden v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-11341-DRH-PMF

Dana Buffin v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-12071-DRH-PMF

Audrey Burnett v. Bayer Corp., et al.

No. 3:10-cv-11183-DRH-PMF

Kendel Cochran v. Bayer Corp., et al.

No. 3:10-cv-10761-DRH-PMF

Mandolyn Davis v. Bayer Corp., et al.

No. 3:10-cv-12650-DRH-PMF

Diana DeLuna, et al. v. Bayer AG, et al.1

No. 3:11-cv-20001-DRH-PMF

Jolanta Fredericks v. Bayer Corp., et al.

No. 3:11-cv-20024-DRH-PMF

Larisa Hardie v. Bayer Corp., et al.

No. 3:10-cv-12666-DRH-PMF

Stacey Klee v. Bayer Corp., et al.

No. 3:11-cv-20023-DRH-PMF

Samantha Lehman v. Bayer Corp., et al.

No. 3:10-cv-12690-DRH-PMF

Stephanie Lowery v.

No. 3:10-cv-11459-DRH-PMF

1

This motion applies to plaintiff Kelly Hansen only.

Bayer HealthCare Pharmaceuticals, Inc., et al.
Alexandria Mosher v. Bayer Corp., et al.

No. 3:10-cv-12698-DRH-PMF

Misty Naumann v. Bayer Corp., et al.

No. 3:11-cv-20022-DRH-PMF

Syreeta Page v. Bayer Corp., et al.

No. 3:10-cv-12700-DRH-PMF

Kelly Perez v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-13224-DRH-PMF

Angela Perkins v. Bayer Corp., et al.

No. 3:10-cv-12701-DRH-PMF

Rose Pickard v. Bayer Corp., et al.

No. 3:10-cv-12702-DRH-PMF

Delma Reyes v. Bayer Corp., et al.

No. 3:10-cv-12765-DRH-PMF

Laura Robinson v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-12956-DRH-PMF

Cecelia Ruiz v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-12847-DRH-PMF

Afton Salyers v. Bayer Corp., et al.

No. 3:10-cv-12708-DRH-PMF

Alondra Scott v. Bayer Corp., et al.

No. 3:10-cv-10464-DRH-PMF

Melissa Sellnow v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-12957-DRH-PMF

Charda Siler v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-11056-DRH-PMF

April Taylor v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:09-cv-10065-DRH-PMF

Michaela Utegg v. Bayer Corp., et al.

No. 3:11-cv-20021-DRH-PMF

Susan Vaughn v. Bayer Corp., et al.

No. 3:10-cv-12741-DRH-PMF

Andrea Velazquez v. Bayer Corp., et al.

No. 3:10-cv-10483-DRH-PMF

Diana Warren v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-10118-DRH-PMF

2

ORDER DISMISSING WITHOUT PREJUDICE

Before the Court is Defendant Bayer HealthCare Pharmaceuticals Inc.
motion, pursuant to Case Management Order 12 (“CMO 12”),2 for an Order
dismissing plaintiffs’ claims in the above-captioned matters3 without prejudice for
failure to comply with their Plaintiff Fact Sheet (“PFS”) obligations.4
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, whichever is later.”
Accordingly, plaintiffs in the above-captioned matters were to have
served completed PFSs on or before April 14, 2011 (See Allmon, Doc. 8 Exhibit

2

The Parties negotiated and agreed to CMO 12, which expressly provides that the
discovery required of plaintiffs is not objectionable. CMO 12 § A(2).

3

The motion to dismiss with regard to member actions Sutton v. Bayer Corp.,
et al., 3:10-cv-12738-DRH-PMF and Trumble v. Bayer Corp., et al., 3:10-cv12739 has been withdrawn (Sutton 3:10-12738 Doc. 8; Trumble 3:10-cv-12739
Doc. 8). These plaintiffs are now in compliance with their PFS obligations.
Therefore, these member actions are not included in this Order.
4

Defendant filed identical motions and exhibits in each of the above captioned
member actions. For ease of reference, the Court references the document
number and exhibits in the first member action listed on the caption. Christina
Allmon v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-11333DRH-PMF Doc. 8).

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A). Per Section E of CMO 12, notice of overdue discovery was sent on or before
May 9, 2011 (See Allmon, Doc. 8 Exhibit B). As of today’s date, plaintiffs in the
above-captioned matters still have not served completed PFSs. Plaintiffs’
completed PFSs are thus more than one month overdue.
Under Section E of CMO 12, plaintiffs were given 14 days from the
date of Bayer’s motion, in this case 14 days from June 10, 2011, to file a
response either certifying that they served upon defendants and defendants
received a completed PFS, and attaching appropriate documentation of receipt or
an opposition to defendant’s motion.5
To date, none of the plaintiffs in the above captioned member actions
has filed a response. Because the Plaintiffs in the above captioned cases have
failed to respond to Bayer’s allegations, the Court finds that these plaintiffs have
failed to comply with the PFS obligations under CMO 12. Accordingly, the Court
hereby ORDERS as follows:

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Responses to Bayer’s motion to dismiss were due 14 days from June 10, 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).
4

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Plaintiff Kelly Hansen in multi-plaintiff member action DeLuna, et al. v.
Bayer AG, et al., No. 3:11-2001-DRH-PMF is DISMISSED WITHOUT
PREJUDICE for failure to comply with the requirements of CMO 12.

x

The rest of the above captioned member actions are DISMISSED
WITHOUT PREJUDICE for failure to comply with the requirements of
CMO 12.

x

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: 2011.06.28
15:40:46 -05'00'
Chief Judge
United States District Court

Date: June 28, 2011

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