Walton v. Bayer Shering Pharma AG et al

Filing 9

ORDER DISMISSING CASE WITH PREJUDICE. The Court directs the Clerk of the Court to enter judgment accordingly. Signed by Judge David R. Herndon on 8/10/2015. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
------------------------------------------------------------

X

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:

McNeal v. Bayer Schering Pharma AG et al No.
3:10-cv-11307-DRH-PMF

Tessie Latiolas, et al. v. Bayer Schering Pharma
AG, et al. No. 3:10-cv-11310-DRH-PMF
Janet Damond v. Bayer Corporation, et al. No.
3:10-cv-11374-DRH-PMF

Blakely Wall v. Bayer Corporation, et al. No.
3:10-cv-11387-DRH-PMF

Charis Williamson v. Bayer Corporation, et al.
No. 3:10-cv-11407-DRH-PMF

Shari Jackson-Echols v. Bayer Corporation, et
al No. 3:10-cv-11428-DRH-PMF
Melody Smith, et al. v. Bayer Corporation, et al.
No. 3:10-cv-11842-DRH-PMF 1

Alexis Alexander v. Bayer Corporation, et al.
No. 3:10-cv-11875-DRH-PMF

Della Fleming v. Bayer Corporation, et al. No.
3:10-cv-11941-DRH-PMF

Tiffany Ivory v. Bayer Corporation, et al. No.
3:10-cv-11968-DRH-PMF

1

This Order applies to plaintiff Heidi Korndorffer only. THE COURT INSTRUCTS THE
CLERK TO REVISE THE DOCKET ACCORDINGLY.

Page 1 of 9

Jessica Richardson v. Bayer Corporation, et al.
No. 3:10-cv-12087-DRH-PMF

Lenora Reese v. Bayer Corporation, et al. No.
3:10-cv-12094-DRH-PMF

Alice Watson v. Bayer Corporation, et al. No.
3:10-cv-12126-DRH-PMF

Larisa Hardie v. Bayer Corporation, et al. No.
3:10-cv-12666-DRH-PMF

Loretta Burns v. Bayer Corporation, et al. No.
3:10-cv-12686-DRH-PMF

Ju Gomez v. Bayer Corporation, et al. No. 3:10cv-12687-DRH-PMF

Nancy Richardson v. Bayer Corporation, et al.
No. 3:10-cv-12706-DRH-PMF

Kimberly Sutton v. Bayer Corporation, et al.
No. 3:10-cv-12738-DRH-PMF

Jacklyn Waites v. Bayer Corporation, et al. No.
3:10-cv-12743-DRH-PMF

Delma Reyes v. Bayer Corporation, et al. No.
3:10-cv-12765-DRH-PMF

Christy Walton v. Bayer Schering Pharma AG,
et al. No. 3:10-cv-13076-DRH-PMF
Karen Zuanich v. Bayer Schering Pharma AG,
et al. No. 3:10-cv-13079-DRH-PMF
Sade Stephens v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:10-cv-13628DRH-PMF

Robin Hackler v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:10-cv-13811DRH-PMF

Page 2 of 9

Shawntai Williams v. Bayer Corporation, et al.
No. 3:10-cv-13857-DRH-PMF
Yvonne Reed v. Bayer Corporation, et al. No.
3:10-cv-13863-DRH-PMF
Caitlin Lilly v. Bayer Corporation, et al. No.
3:10-cv-13869-DRH-PMF
Tiana Miller, et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:11-cv-10001-

DRH-PMF 2

Felicia Lockett, et al. v. Bayer Schering Pharma
AG, et al. No. 3:11-cv-10335-DRH-PMF3
Veronica Granados, et al. v. Bayer Schering
Pharma AG, et al. No. 3:11-cv-10345-DRHPMF 4

Moria Webb, et al. v. Bayer Schering Pharma
AG, et al. No. 3:11-cv-10434-DRH-PMF5
2

This Order applies to plaintiff Sabrina Matthews only. The Court INSTRUCTS THE CLERK
TO REVISE THE DOCKET ACCORDINGLY. As to plaintiff Sabrina Matthews, the Court notes
that it granted counsel’s motion to withdraw on June 22, 2015. In that order, the Court directed
withdrawing counsel to serve a copy of the order of withdrawal and of the pending motion to
dismiss on plaintiff Matthews. Further, among other things, the Court advised the plaintiff her
responsive pleading was due on or before July 23, 2015 and warned the plaintiff regarding the
risk of dismissal.

3

This Order applies to plaintiff Felicia Lockett only. However, as all other plaintiffs have
previously been dismissed, the dismissal of plaintiff Felicia Locket CLOSES THE CASE. The
Court DIRECTS THE CLERK TO TERMINATE THE ACTION IN ITS ENTIRETY. Judgement
will not be entered as at least one of the plaintiffs has been dismissed without prejudice.

4

This Order applies to plaintiff Veronica Granados only. However, as all other plaintiffs have
previously been dismissed, the dismissal of plaintiff Veronica Granados CLOSES THE CASE.
The Court DIRECTS THE CLERK TO TERMINATE THE ACTION IN ITS ENTIRETY.
FURTHER, as all parties have been dismissed with prejudice, the Court INSTRUCTS THE
CLERK TO ENTER JUDGMENT REFLECTING THE SAME.

5

This Order applies to plaintiff Moria Webb only. However, as all other plaintiffs have
previously been dismissed, the dismissal of plaintiff Moria Webb CLOSES THE CASE. The
Court DIRECTS THE CLERK TO TERMINATE THE ACTION IN ITS ENTIRETY. FURTHER, as
all parties have been dismissed with prejudice, the Court INSTRUCTS THE CLERK TO
ENTER JUDGMENT REFLECTING THE SAME.

Page 3 of 9

Saby Jimenez, et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:11-cv-10871DRH-PMF

Jessica Mulhall v. Bayer Corporation, et al. No.
3:11-cv-11559-DRH-PMF

Cory Hagen, et al. v. Bayer Pharma AG, et al.
No. 3:11-cv-12272-DRH-PMF 6

Jacquline Creekmore v. Bayer Corporation, et
al. No. 3:11-cv-13257-DRH-PMF
Gloria Romero v. Bayer Corporation, et al. No.
3:12-cv-10468-DRH-PMF

Georgia Lee v. Bayer Corporation, et al. No.
3:12-cv-10490-DRH-PMF

LaToya Sanders v. Bayer Corporation, et al. No.
3:12-cv-10754-DRH-PMF

Monica Uriarte, et al. v. Bayer Pharma AG, et
al. No. 3:12-cv-11255-DRH-PMF 7
Megan Lambert, et al. v. Bayer Pharma AG, et
al. No. 3:12-cv-11449-DRH-PMF 8
Teattya Cranston, et al. v. Bayer Pharma AG, et
al. No. 3:12-cv-11476-DRH-PMF 9
6

This Order applies to plaintiff Cory Hagen only. However, as all other plaintiffs have previously
been dismissed, the dismissal of plaintiff Cory Hagen CLOSES THE CASE. The Court
DIRECTS THE CLERK TO TERMINATE THE ACTION IN ITS ENTIRETY. FURTHER, as all
parties have been dismissed with prejudice, the Court INSTRUCTS THE CLERK TO ENTER
JUDGMENT REFLECTING THE SAME.
7

This Order applies to plaintiff Ashley Hellerich only. The Court INSTRUCTS THE CLERK TO
REVISE THE DOCKET ACCORDINGLY.

8

This Order applies to plaintiff Megan Lambert only. However, as all other plaintiffs have
previously been dismissed, the dismissal of plaintiff Megan Lambert CLOSES THE CASE. The
Court DIRECTS THE CLERK TO TERMINATE THE ACTION IN ITS ENTIRETY. FURTHER, as
all parties have been dismissed with prejudice, the Court INSTRUCTS THE CLERK TO
ENTER JUDGMENT REFLECTING THE SAME.

Page 4 of 9

Stephanie Jackson v. Bayer Pharma AG, et al.
No. 3:12-cv-11558-DRH-PMF 10

Martha Ponce v. Bayer Corporation, et al. No.
3:12-cv-11594-DRH-PMF

Tammiah Tuggle v. Bayer Corporation, et al.
No. 3:13-cv-10008-DRH-PMF

Jacqueline Lewis v. Bayer Corporation, et al
No. 3:13-cv-10084-DRH-PMF

Francena Griswold v. Bayer Corporation, et al.
No. 3:13-cv-10100-DRH-PMF

Karen Wysinger v. Bayer Corporation, et al. No.
3:13-cv-10123-DRH-PMF

9

This Order applies to plaintiff Celia Reid only. The Court INSTRUCTS THE CLERK TO
REVISE THE DOCKET ACCORDINGLY.

10

This Order applies to plaintiff Teresa Lynn Awan only. The Court INSTRUCTS THE CLERK
TO REVISE THE DOCKET ACCORDINGLY.

Page 5 of 9

Jennifer Gibson, et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:13-cv-10554DRH-PMF 11

Charity Cooksey, et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:14-cv-10232DRH-PMF 12

HERNDON, District Judge:
This matter is before the Court on defendants’ motions to dismiss the
above captioned plaintiffs’ claims with prejudice for failure to comply with CMO
70. None of the above captioned plaintiffs has filed a response. The Court deems
each plaintiff’s failure to respond as an admission on the merits of the defendants’
motion. See S.D. Ill. Local Rule 7.1(c). For the reasons discussed herein the
motions are GRANTED. The above captioned plaintiffs’ claims are dismissed
WITH prejudice.

11

This Order applies to plaintiff Jennifer Gibson only. However, as all other plaintiffs have
previously been dismissed, the dismissal of plaintiff Jennifer Gibson CLOSES THE CASE. The
Court DIRECTS THE CLERK TO TERMINATE THE ACTION IN ITS ENTIRETY. FURTHER, as
all parties have been dismissed with prejudice, the Court INSTRUCTS THE CLERK TO
ENTER JUDGMENT REFLECTING THE SAME. Finally, as to plaintiff Jennifer Gibson, the
Court notes that it granted counsel’s motion to withdraw on June 22, 2015. In that order, the
Court directed withdrawing counsel to serve a copy of the order of withdrawal and of the pending
motion to dismiss on plaintiff Gibson. Among other things, the Court advised the plaintiff her
responsive pleading was due on or before July 23, 2015 and warned the plaintiff regarding the
risk of dismissal.
12

This Order applies to plaintiff Charity Cooksey only. The Court INSTRUCTS THE CLERK
TO REVISE THE DOCKET ACCORDINGLY. As to plaintiff Charity Cooksey, the Court notes that
it granted counsel’s motion to withdraw on June 22, 2015. In that order, the Court directed
withdrawing counsel to serve a copy of the order of withdrawal and of the pending motion to
dismiss on plaintiff Cooksey. Further, among other things, the Court advised the plaintiff her
responsive pleading was due on or before July 23, 2015 and warned the plaintiff regarding the
risk of dismissal.

Page 6 of 9

The Court entered CMO 70 (09-2100 Doc. 3634) on February 13, 2015.
Among other things, CMO 70 provides a procedure for addressing cases where
defendants maintain the plaintiff has not consumed YAZ, Yasmin, or any of the
generic equivalents. More specifically, CMO 70 included the following directives:
1. Defendants were instructed to submit a list identifying the subject
plaintiffs to lead counsel for the PSC.
2. Lead Counsel for the PSC was instructed to contact the attorneys
representing the identified plaintiffs and advise them of the allegation.
3. The attorneys representing the identified plaintiffs were ordered to (1)
submit the plaintiff to a deposition confined to the issue of the
prescription and taking of the subject matter pharmaceuticals and other
oral contraceptives during the relevant time period or (2) submit an
affidavit outlining all contraceptives taken by the plaintiff during the
relevant time period, the name of the prescriber, and providing a
medical release. The deadline for completing this requirement was 30
days from the date of identification by the defendants.
4. Thereafter, plaintiffs who did not take the subject pharmaceuticals were
directed to file a voluntary dismissal or show cause why the Court
should not summarily dismiss the case.
Defendants submitted the list identifying the subject plaintiffs to lead
counsel on April 15, 2015. The above captioned plaintiffs were identified on the

Page 7 of 9

list and received notice of the same from Lead Counsel. 13 None of the above
captioned plaintiffs took any action with regard to CMO 70.
Thereafter, in May 2015, the defendants sent letters to the attorney of
record for each of the above captioned plaintiffs regarding CMO 70 obligations
and deadlines. The first letter reminded each plaintiff about the requirements of
CMO 70 and stated that the subject plaintiff had not provided an affidavit or
contacted defendants about dismissing the case. The letter also included a
deposition notice. None of the above captioned plaintiffs responded or took any
other action with regard to CMO 70. Defendants then sent a second letter. The
second letter, once again, reviewed the requirements of CMO 70 and advised that
the subject plaintiffs must dismiss or show cause within 21 days. Once again,
none of the above captioned plaintiffs responded.
Accordingly, defendants filed the present motion seeking a with prejudice
dismissal for failure to comply with CMO 70. Under this Court’s local rules, the
above captioned plaintiffs had 30 days to respond to the motion for with prejudice
dismissal. As previously noted, the time for responding has passed and none of
the above captioned plaintiffs have filed a response.
As described above, the above captioned plaintiffs have been given
numerous opportunities to comply with CMO 70. Despite repeated notifications
and reminders, the subject plaintiffs have made no effort to comply with this

13

As none of the above captioned plaintiffs have responded to this motion, the Court presumes
that each plaintiff received the notice contemplated by CMO 70.

Page 8 of 9

Court’s orders. In addition, the plaintiffs have completely failed to respond to the
subject motions to dismiss.
In light of the above, the Court finds that dismissal with prejudice under
Federal Rule of Civil Procedure 41(b) for failure to comply with a court rule or
order is warranted. The Court realizes this is a harsh remedy, but the Court takes
this course of action having considered the above captioned plaintiffs repeated
disregard for their obligations under CMO 70 and complete failure to respond to
the subject motions to dismiss.
For the reasons described herein, the above captioned plaintiffs’ claims are
dismissed with prejudice. The dockets shall be revised accordingly. FURTHER,
the Court directs the Clerk of the Court to enter judgment in accord with the
Court’s directives as described in the footnotes to this Order.
IT IS SO ORDERED.
Signed this 10th day of August, 2015.

Digitally signed
by David R.
Herndon
Date: 2015.08.10
16:13:42 -05'00'
United States District Court

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