Gregory et al v. Bayer Healthcare Pharmaceuticals, Inc. et al

Filing 15

ORDER STRIKING AND REPLACING 14 (for the purpose of correcting typographical error) AND DISMISSING THE CASE WITH PREJUDICE. Plaintiff Amber Gregory failed to comply with § I.D. of CMO 61. The Court adopts Special Master Saltzburgs report and recommendation as to this plaintiff. The plaintiffs claims (and the consortium claims of the plaintiffs husband, William Gregory) 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.. Signed by Chief Judge David R. Herndon on 11/20/2013. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
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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:

Madeline Wooten, et al. v. Bayer
HealthCare Pharmaceuticals Inc., et al. No.
3:11-cv-12572-DRH-PMF1
Trachelle Riley et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:11-cv12938-DRH-PMF2
Paulette Hardy et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:12-cv11108-DRH-PMF3
Amber Gregory v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:10-cv13170-DRH-PMF
Brandi Looney v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:11-cv11720-DRH-PMF
Erica Matysiak-Walton v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:11-cv10755-DRH-PMF
Johanna Wright v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:10-cv13015-DRH-PMF
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2
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This Order applies to plaintiff Rebekah Dean only.
This Order applies to plaintiff Sharon Lane only.
This Order applies to plaintiff Jenna Warren only.

1

ORDER
HERNDON, Chief Judge:
In the above captioned cases, Bayer has filed motions to show cause why
the claims of certain 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.4 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. 5
Pursuant to Section I.E. of CMO 61, each plaintiff had 30 days to respond
to Bayer’s motion to show cause. With one exception, none of the subject plaintiffs
filed any such response. The only plaintiff that filed a response was Erica
Matysiak-Walton (3:11-cv-10755 Doc. 11). In her response, Ms. Matysiak-Walton
does not dispute any of the assertions in Bayer’s motion to show cause and asks
the Court to dismiss her case (3:11-cv-10755 Doc. 11).

4

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
(“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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2

At the expiration of the 30 day responsive pleading time, the motions were
considered by Special Master Stephen Saltzburg. 6 Special Master Saltzburg
reviewed the pleadings and the requirements of CMO 61 and filed a report and
recommendation regarding each motion to show cause. The parties were then
given 14 days to respond or object to Special Master Saltzburg’s report and
recommendation.
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. Further, in each case, the 14 day deadline for responding or objecting to
the Special Master’s report has expired. None of the subject plaintiffs has
responded or objected in any way.
Upon consideration of Bayer’s motions to dismiss, the Special Master’s
report and 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).

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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).

3

Specifically, with regard to each of the above captioned plaintiffs, the Court
finds as follows:

Madeline Wooten, et al. v. Bayer Pharmaceuticals Inc., et al. HealthCare
No. 3:11-cv-12572-DRH-PMF
Plaintiff Rebekah Dean 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 at the close of the case.

Trachelle Riley et al. v. Bayer HealthCare Pharmaceuticals Inc., et al. No.
3:11-cv-12938-DRH-PMF
Plaintiff Sharon Lane 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 at the close of the case.

4

Paulette Hardy et al. v. Bayer HealthCare Pharmaceuticals Inc., et al. No.
3:12-cv-11108-DRH-PMF
Plaintiff Jenna Warren 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 at the close of the case.

Amber Gregory v. Bayer HealthCare Pharmaceuticals Inc., et al. No. 3:10cv-13170-DRH-PMF
Plaintiff Amber Gregory 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 (and the consortium claims of the plaintiff’s husband,
William Gregory) 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.

5

Brandi Looney v. Bayer HealthCare Pharmaceuticals Inc., et al. No. 3:11cv-11720-DRH-PMF
Plaintiff Brandi Looney 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.
Erica Matysiak-Walton v. Bayer HealthCare Pharmaceuticals Inc., et al.
No. 3:11-cv-10755-DRH-PMF
Plaintiff Erica Matysiak-Walton 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.

6

Johanna Wright v. Bayer HealthCare Pharmaceuticals Inc., et al. No. 3:10cv-13015-DRH-PMF
Plaintiff Johanna Wright 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:

David R.
Herndon
2013.11.20
23:49:12 -06'00'
Chief Judge
United States District Court

Date: November 20, 2013

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