Bishop et al v. Bayer Healthcare Pharmaceuticals Inc. et al

Filing 11

ORDER granting 10 Motion to Dismiss without prejudice as to plaintiff Heather Bishop only. Signed by Chief Judge David R. Herndon on 6/5/2012. (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:
Rhonda L. Adams v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12309-DRH-PMF

Jennifer Alday v. Bayer Corp., et al.

No. 3:11-cv-12382-DRH-PMF

Suzanne K. Aydlotte v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12004-DRH-PMF

Amy Baechel v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12084-DRH-PMF

Constance L. Bauer and Neil Goulden v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11999-DRH-PMF

Jennifer S. Bessinger v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12762-DRH-PMF

Angelia C. Biddix and Wayne Whetsel v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12089-DRH-PMF

Heather Bishop, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-10942-DRH-PMF 1

Victoria Brown v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12159-DRH-PMF

Karen Burrell v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12003-DRH-PMF

1

This order applies only to plaintiff Heather Bishop.

Serena Cisneros v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11962-DRH-PMF

Michelle Coghill v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12144-DRH-PMF

Sharon N. Connors v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12201-DRH-PMF

Chala S. Crawford v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12780-DRH-PMF

Maria A. DiGuglielmo v.
Bayer HealthCare Pharmaceuticals., et al.

No. 3:11-cv-12636-DRH-PMF

Nora Dimas v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12124-DRH-PMF

Kimberly Franklin v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11948-DRH-PMF

Cyndel L. and Raymundo Galindo v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12237-DRH-PMF

Charlie Sue Goshay, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12563-DRH-PMF 2

Jennifer Inman v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12278-DRH-PMF

Michelle Kravetz v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12277-DRH-PMF

Ginger K. Lewis v. Bayer Corp., et al.

No. 3:11-cv-12515-DRH-PMF

Maureen Lyman v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12584-DRH-PMF

Chelsea D. Masongsong v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12635-DRH-PMF

2

This order applies only to plaintiff Victoria Denton.

2

Rebecca Massey v. Bayer Corp., et al.

No. 3:11-cv-12416-DRH-PMF

Tamara Morris v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-13690-DRH-PMF

Holly Newton v. Bayer Corp., et al.

No. 3:11-cv-12926-DRH-PMF

Diana Olliges v. Bayer Corp., et al.

No. 3:11-cv-12315-DRH-PMF

Kimberly Oslin, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12580-DRH-PMF 3

Angela Pupello v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12200-DRH-PMF

Peter Rashke, as Administrator of the Estate of No. 3:11-cv-11492-DRH-PMF
Susan J. Minha, Deceased v. Bayer Corp., et al.
Melissa and Colin Rawn v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12091-DRH-PMF

Marybeth Rivera v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11963-DRH-PMF

Patricia Rotundo v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11947-DRH-PMF

Jenna Ruth v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11998-DRH-PMF

Beatrice Santinga v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12087-DRH-PMF

Mariah Smith v. Bayer Corp., et al.

No. 3:11-cv-12267-DRH-PMF

Bernadette M. Veal v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11942-DRH-PMF

Alice Vidal v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11945-DRH-PMF

3

This order applies only to plaintiff Kimberly Oslin.

3

Larhonda Walker v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12141-DRH-PMF

Kristy Weilbrenner v. Bayer Corp., et al.

No. 3:11-cv-12654-DRH-PMF

Sharmon D. and Dwayne Young v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12126-DRH-PMF

ORDER OF DISMISSAL WITHOUT PREJUDICE
(Failure to Comply with PFS Obligations)
This matter is before the Court on the Bayer defendants’ motion, pursuant
to Case Management Order 12 (“CMO 12”) 4 for an Order dismissing plaintiffs’
claims in the above-captioned matters without prejudice for failure to comply with
their Plaintiff Fact Sheet (“PFS”) obligations. 5
4

Error! Main Document Only.The Parties negotiated and agreed to CMO 12,
which expressly provides that the discovery required of plaintiffs is not
objectionable. CMO 12 § A(2).
5
Bayer’s motion to dismiss also sought dismissal of the following member
actions: (1) Janie M. Brandon and Jamall Heard v. Bayer Corp., et al. No. 3:11cv-12656-DRH-PMF; (2) Ginger A. and John Casebeer v. Bayer Corp., et al No.
3:11-cv-12419-DRH-PMF; (3) Katie Chor, et. al. v. Bayer HealthCare
Pharmaceuticals, Inc., et al No. 3:11-cv-12891-DRH-PMF (as to plaintiff April
Christmas only); (4) Jessica Marie Dively v. Bayer Pharmaceuticals Corp., et al.
No. 3:11-cv-12644-DRH-PMF; (5) Jennifer Kelley v. Bayer Corp., et al. No. 3:11cv-12264-DRH-PMF; (6) Whitney Wells Kester v. Bayer Corp., et al. No. 3:11-cv12412-DRH-PMF; (7) Kristin Marie Kightlinger v. Bayer Pharmaceuticals Corp.,
et al. No. 3:11-cv-12289-DRH-PMF; (8) Lindsey A. King v. Bayer Corp., et al. No.
3:11-cv-12653-DRH-PMF;
(9)
Michelle
Reid
v.
Bayer
HealthCare
Pharmaceuticals, Inc., et al. No. 3:11-cv-12581-DRH-PMF; (10) Thelma Schwarz
v. Bayer Corp., et al. No. 3:10-cv-13694-DRH-PMF; (11) Andrea L. Shepherd v.
Bayer Corp., et al. No. 3:11-cv-12427-DRH-PMF; (12) Holly A. Smith v. Bayer
Corp., et al. No. 3:11-cv-12411-DRH-PMF; (13) Barbara Willimann-Colley, et al.
v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-12543-DRH-PMF
(as to plaintiff Esmeralda Hernandez-Juni only). The subject plaintiffs in these
actions subsequently complied with their PFS obligations and/or Bayer withdrew
its motions to dismiss. Accordingly, as to these member actions the motion to
dismiss is moot. Bayer’s motion also sought dismissal of the following member
actions: (1) Laura Monarrez v. Bayer HealthCare Pharmaceuticals, Inc., et al.
No. 3:11-cv-12528-DRH-PMF and (2) Holly M. Tackett v. Bayer HealthCare
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, the plaintiffs in the above-captioned matters were to have
served completed PFS materials on or before February 27, 2012 (See e.g., Adams
Doc. 6-1). 6 Per Section E of CMO 12, Notice of Overdue Discovery was sent on or
before March 26, 2012. (See e.g., Adams Doc. 6-2). 7 As of the filing of this
motion, Bayer reports that it still had not received completed PFS materials from
the Plaintiffs in the above-captioned matters. 8 As of today’s date, the plaintiffs in

Pharmaceuticals, Inc., et al. No. 3:11-cv-12761-DRH-PMF. The parties, however,
subsequently filed a stipulation of dismissal in these member actions.
Accordingly, pursuant to the stipulations of dismissal, the motions to dismiss are
now moot.
6
Identical motions were filed in each of the above captioned cases. For ease of
reference the Court refers to the motion and exhibits filed in Adams v. Bayer
HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-12309-DRH-PMF (Docs 6,
6-1, & 6-2).
7
A similar case specific notice of over-due discovery was sent to each of the
subject plaintiffs and is attached as an exhibit to Bayer’s motion to dismiss in
each of the above captioned member actions.
8
Bayer states that it received some medical records for plaintiff Jennifer Kelley
(Case No. 3:11-cv-12264) on March 23, 2012, but reports that it has not received
her PFS or other required disclosures. Likewise, Bayer reports that it received
some medical record for plaintiff Holly Newton (Case No. 3:11-cv-12926) on
March 7, 2012, but it has not received her PFS or other required disclosures.

5

the above captioned matters are more than three months late in completing their
PFS requirements.
Under Section E of CMO 12, plaintiffs were given 14 days from the date
of Bayer’s motion, in this case 14 days from April 25, 2012, 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. 9
To date, none of the plaintiffs in the above captioned member actions has
filed a response.

Because the plaintiffs have failed to respond to Bayer’s

allegations, the Court finds that these plaintiffs have failed to comply with their
PFS obligations under CMO 12.

Accordingly, the claims of the above

captioned plaintiffs are hereby dismissed without prejudice.
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

9

Responses to Bayer’s motion to dismiss were due 14 days from April 25, 2012
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).
6

Order will be converted to a Dismissal With Prejudice upon defendants’
motion.
In accordance with this order of dismissal without prejudice, the Court
instructs the Clerk of the Court to terminate the claims of the following plaintiffs:
In member action Heather Bishop, et al. v. Bayer HealthCare
Pharmaceuticals, Inc., et al No. 3:11-cv-10942-DRH-PMF
The claims of plaintiff Heather Bishop are dismissed without prejudice
and subject to termination.
.
In member action Charlie Sue Goshay, et al. v. Bayer HealthCare
Pharmaceuticals, Inc., et al No. 3:11-cv-12563-DRH-PMF
The claims of plaintiff Victoria Denton are dismissed without prejudice
and subject to termination.
In member action Kimberly Oslin, et al. v. Bayer HealthCare
Pharmaceuticals, Inc., et al. No. 3:11-cv-12580-DRH-PMF
The claims of plaintiff Kimberly Oslin are dismissed without prejudice and
subject to termination.
Further, in accordance with this order of dismissal without prejudice, the
Court instructs the Clerk of the Court to close the remaining member actions.

SO ORDERED
Digitally signed by David
R. Herndon
Date: 2012.06.05 15:40:04
-05'00'

Chief Judge
United States District Court

Date: June 5, 2012

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