Kozaklewicz v. Bayer Corporation et al

Filing 12

ORDER granting 11 Motion to Dismiss without prejudice. Signed by Chief Judge David R. Herndon on 5/31/2012. (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:
Shontay Ackerson v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-10283-DRH-PMF

Angie Ancheta, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.1

No. 3:10-cv-13246-DRH-PMF

Laurie Armetta v. Bayer Corp., et al.

No. 3:10-cv-13502-DRH-PMF

Andrea Baginski v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12367-DRH-PMF

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

No. 3:10-cv-13883-DRH-PMF

Callie Ball v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-13875-DRH-PMF

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

No. 3:11-cv-11966-DRH-PMF

Megan Berg v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11388-DRH-PMF

Crystal Boroff v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-13880-DRH-PMF

1

This order applies to all plaintiffs, i.e., Angie Anchetta and Mable Hughes.
1

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

No. 3:11-cv-10577-DRH-PMF

Danielle Calabrese v. Bayer Corp., et al.

No. 3:10-cv-13371-DRH-PMF

Denise Cudney v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-10617-DRH-PMF

Kenyatta Davis v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11938-DRH-PMF

Katie Donaldson v. Bayer Corp., et al.

No. 3:11-cv-10486-DRH-PMF

Rochelle Dougherty v. Bayer Corp., et al.

No. 3:10-cv-11502-DRH-PMF

Kaci Douglass v. Bayer Corp., et al.

No. 3:11-cv-10487-DRH-PMF

Kari Emery v. Bayer Corp., et al.

No. 3:11-cv-10361-DRH-PMF

Angel Ferrell, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.2

No. 3:10-cv-13178-DRH-PMF

Rebecca Franco, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.3

No. 3:10-cv-13240-DRH-PMF

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

No. 3:11-cv-12831-DRH-PMF

Anna Garcia, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.4

No. 3:10-cv-13244-DRH-PMF

Heather Gibson v. Bayer Corp., et al.

No. 3:11-cv-10654-DRH-PM

Kirsten Goodlett v. Bayer Corp., et al.

No.3:11-cv-10610-DRH-PMF

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

No. 3:11-cv-11946-DRH-PMF

2

This order applies only to plaintiff Elizabeth Muldoon.

3

This order applies only to plaintiff Elizabeth Luginbyhl.

4

This order applies only to plaintiff Anna Garcia.
2

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

No. 3:11-cv-10036-DRH-PMF

Tiffany Hansley v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-13195-DRH-PMF

Kiona Harvey v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-13330-DRH-PMF

Donna and Robert Hill, Jr. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-13596-DRH-PMF

Ryann Hofmann v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-10299-DRH-PMF

Tammy Holmes v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-10515-DRH-PMF

Kathy Hutchinson v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-10540-DRH-PMF

Mireya and Jeff Iannuzzi v. Bayer Corp., et al.

No. 3:11-cv-11100-DRH-PMF

Whitney Ingram, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.5

No. 3:11-cv-10652-DRH-PMF

Kassandra Keeling v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-10044-DRH-PMF

Geneva Kenner v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-10208-DRH-PMF

Michelle Kielman v. Bayer Corp., et al.

No. 3:10-cv-13795-DRH-PMF

Debbie Knight, et al. v. Bayer Corp., et al.6

No. 3:10-cv-12903-DRH-PMF

Kara Kozaklewicz v. Bayer Corp., et al.

No. 3:11-cv-11481-DRH-PMF

5

This order applies only to plaintiff Whitney Ingram.

6

This order applies only to plaintiff San Juana Elizabeth Martinez Rodriguez.
3

Brittany Lassiter v. Bayer Corp., et al.

No. 3:11-cv-10563-DRH-PMF

Kristy Lee, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.7

No. 3:10-cv-13248-DRH-PMF

Lauren and Andrew Lieb v. Bayer Corp., et al.

No. 3:11-cv-20091-DRH-PMF

Carley Lockhart v. Bayer Corp., et al.

No. 3:11-cv-10609-DRH-PMF

Melanie Lonczak v. Bayer Corp., et al.

No. 3:11-cv-12753-DRH-PMF

Angelica Lopez, et al. v. Bayer Corp., et al.8

No. 3:10-cv-12941-DRH-PMF

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

No. 3:11-cv-10972-DRH-PMF

Melanie Lowrey, et al. v. Bayer Corp., et al.9

No. 3:10-cv-12269-DRH-PMF

Kristen Mangino v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-13358-DRH-PMF

Danielle Mazur v. Bayer Corp., et al.

No. 3:11-cv-10255-DRH-PMF

Jessica McCaslin v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-10621-DRH-PMF

Sondra McCoy v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12086-DRH-PMF

Siobhan McGee v. Bayer Corp., et al.

No. 3:11-cv-12797-DRH-PMF

Mallory McGlothin v. Bayer Corp., et al.

No. 3:10-cv-13567-DRH-PMF

Brittany McKenrick v. Bayer Corp., et al.

No. 3:11-cv-10488-DRH-PMF

Annaliza Mendoza v. Bayer Corp., et al.

No. 3:10-cv-13230-DRH-PMF

7

This order applies only to plaintiff Anna Mauldin.

8

This order applies only to plaintiffs Kristi Hammett Amador and Angelica Lopez.

9

This order applies only to plaintiff Danielle Smith.
4

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

No. 3:11-cv-10023-DRH-PMF

Sarah Moseley v. Bayer Corp., et al.

No. 3:11-cv-10454-DRH-PMF

Tiffany Moses v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-10536-DRH-PMF

Clarissa Munoz v. Bayer Corp., et al.

No. 3:11-cv-10519-DRH-PMF

Maggie Murdock v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11867-DRH-PMF

Cynthia New v. Bayer Corp., et al.

No. 3:11-cv-10485-DRH-PMF

Lauren Nolasco v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11928-DRH-PMF

Kathleen Nold v. Bayer Corp., et al.

No. 3:11-cv-12795-DRH-PMF

Monica Ortiz v. Bayer Corp., et al.

No. 3:11-cv-10418-DRH-PMF

Vanessa Palomo v. Bayer Corp., et al.

No. 3:11-cv-10065-DRH-PMF

Jessica Rios v. Bayer Corp., et al.

No. 3:11-cv-11008-DRH-PMF

Joanne Roberts v. Bayer Corp., et al.

No. 3:10-cv-12965-DRH-PMF

Marsha Rucker v. Bayer Corp., et al.

No. 3:11-cv-10270-DRH-PMF

Kristin Saenz, et al. v. Bayer Corp., et al.10

No. 3:10-cv-12977-DRH-PMF

Theresa Samms v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12162-DRH-PMF

Mandy Schaible v. Bayer Corp., et al.

No. 3:11-cv-12793-DRH-PMF

Michelle Simpkins, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.11

No. 3:10-cv-13242-DRH-PMF

10

This order applies only to plaintiffs Ashley Ruby and Kristin Saenz.

11

This order applies only to plaintiff Candyce Roberts.
5

Jessica Slaats v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-10284-DRH-PMF

Christine Smith v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12125-DRH-PMF

Raven Smith v. Bayer Corp., et al.

No. 3:11-cv-11637-DRH-PMF

Ursula Smith v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-13400-DRH-PMF

Atara Stewart, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.12

No. 3:10-cv-13243-DRH-PMF

Kyrsten Unger v. Bayer Corp., et al.

No. 3:11-cv-10210-DRH-PMF

Kristen Vaughn, a minor, by her mother, Jacqeline No. 3:10-cv-11812-DRH-PMF
Vaughn, and Jacqeline Vaughn, individually
v. Bayer Corp., et al.
Janelle Wade v. Bayer Corp., et al.

No. 3:10-cv-11693-DRH-PMF

Rachel Warner v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-13879-DRH-PMF

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

No. 3:10-cv-13193-DRH-PMF

Liz Westbrook, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al.13

No. 3:10-cv-13247-DRH-PMF

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

No. 3:11-cv-10286-DRH-PMF

Heather Young v. Bayer Corp., et al.

No. 3:11-cv-10672-DRH-PMF

12

This order applies only to plaintiff Dalynn Dowling.

13

This order applies only to plaintiff Autumn Weatherspoon.
6

ORDER DISMISSING WITHOUT PREJUDICE
This matter is before the Court on the Bayer defendants motion, pursuant to
Case Management Order 12 (“CMO 12”),14 for an Order dismissing plaintiffs’ claims
in the above-captioned matters without prejudice for failure to comply with their
Plaintiff Fact Sheet (“PFS”) obligations.15
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
14

The Parties negotiated and agreed to CMO 12, which expressly provides that the
discovery required of plaintiffs is not objectionable. CMO 12 § A(2).
15

Defendants also sought dismissal of the following member actions: Julie Bell, et al.
v. Bayer HealthCare Pharmaceuticals, Inc., et al No. 3:11-cv-12562-DRH-PMF; Linda
and Harry Deppe v. Bayer Pharmaceuticals Corp., et al.No. 3:11-cv-10937-DRH-PMF;
Dayna DiCarlo v. Bayer Corp., et al. No. 3:11-cv-12417-DRH-PMF; Jenna Gilbertson v.
Bayer Corp., et al. No. 3:11-cv-12044-DRH-PMF; Gretchen Gilliland v. Bayer Corp., et
al. No. 3:11-cv-10052-DRH-PMF; Courtney Graham v. Bayer Corp., et al. No. 3:11-cv12213-DRH-PMF; Patricia and Geoff Gunner v. Bayer AG, et al. No. 3:10-cv-20502-DRHPMF; Dolores Gutierrez-Pasillas v. Bayer HealthCare Pharmaceuticals, Inc., et al. No.
3:11-cv-10757-DRH-PMF; Cara Kruse v. Bayer Corp., et al. No. 3:11-cv-11890-DRH-PMF;
Nicole Smith v. Bayer Corp., et al. No. 3:11-cv-12410-DRH-PMF; Garrie Storie v. Bayer
Corp., et al. No. 3:11-cv-12214-DRH-PMF; Colette Thom-October and Marvin October
v. Bayer Corp., et al. No. 3:11-cv-12228-DRH-PMF; Lisa Winger v. Bayer Corp., et al. No.
3:11-cv-12119-DRH-PMF. In these actions, however, the subject plaintiffs subsequently
provided completed PFSs and/or defendants withdrew the motions to dismiss. In
addition, defendants sought dismissal of the following member action: Jennifer Cruz v.
Bayer Corp., et al. No. 3:11-cv-12750-DRH-PMF. The parties subsequently filed
stipulations of dismissal in this member action. Accordingly, the motion to dismiss is now
moot. Finally, defendants’ motion to dismiss seeks dismissal of plaintiff Laurie
Nenadovich in member action
Natasha Haley, et al. v. Bayer HealthCare
Pharmaceuticals, Inc., et al. No. 3:11-cv-12892-DRH-PMF. In this action, however, the
Court has granted plaintiff Nenadovich an extension of time to respond. The extension has
not yet expired, accordingly the subject motion is not yet ripe.
7

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 January 22, 2012 (See Ackerson 3:11-10283 Doc. 8-1).16
Per Section E of CMO 12, Notice of Overdue Discovery was sent on or before February
17, 2012. (See Ackerson 3:11-10283 Doc. 8-2). Thus, as of today’s date, the plaintiffs
in the above captioned matters are more than four months late in completing their PFS
requirements.17
Under Section E of CMO 12, plaintiffs were given 14 days18 from the date of
Bayer’s motion, in this case 14 days from March 13, 2012, to file a response either
certifying that they served upon defendants and defendants received a completed PFS,

16

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 Ackerson v. Bayer HealthCare
Pharmaceuticals, Inc., et al. No. 3:11-cv-10283-DRH-PMF (Docs 8, 8-1, & 8-2).
17

Bayer reports that it received some medical records for plaintiff Amanda Franklin,
Case No. 3:11-cv-12831, on February 16, 2012, but it had not received her PFS or other
required disclosures. Providing some medical records does not constitute compliance
with CMO 12. Accordingly, plaintiff Amanda Franklin’s action is subject to dismissal.
18

In two member actions, Vaughn et al., v. Bayer Corp. et al. No. 3:10-cv-11812 and
Iannuzzi v. Bayer Corp., et al. No. 3:11-cv-11100, the Court granted plaintiffs a 14-day
extension (Vaughn Doc. 14; Iannuzzi Doc. 13). Plaintiffs had until April 10, 2012 to
comply with their PFS requirements (Vaughn Docs 12 & 14; Iannuzzi Docs 12 & 13). To
date, plaintiffs have not filed anything with the Court indicating that they are now in
compliance with their PFS obligations. Accordingly, these cases are subject to dismissal
pursuant to CMO 12.
8

and attaching appropriate documentation of receipt or an opposition to defendant’s
motion.19
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 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:

19

Responses to Bayer’s motion to dismiss were due 14 days from March 13, 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).
9

·

Plaintiffs Angie Anchetta and Mable Hughes, member action Angie Ancheta,
et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13246DRH-PMF

·

Plaintiff Elizabeth Muldoon, member action Angel Ferrell, et al. v. Bayer
HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13178-DRH-PMF

·

Plaintiff Elizabeth Luginbyhl, member action Rebecca Franco, et al. v. Bayer
HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13240

·

Plaintiff Anna Garcia, member action Anna Garcia, et al. v. Bayer
HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13244-DRH-PMF

·

Plaintiff Whitney Ingram, member action Whitney Ingram, et al. v. Bayer
HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10652-DRH-PMF

·

Plaintiff San Juana Elizabeth Martinez Rodriguez, member action Debbie
Knight, et al. v. Bayer Corp., et al No. 3:10-cv-12903-DRH-PMF

·

Plaintiff Anna Mauldin, member action Kristy Lee, et al. v. Bayer
HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13248-DRH-PMF

·

Plaintiffs Kristi Hammett and Angelica Lopez, member acction Angelica
Lopez, et al v. Bayer Corp., et al. No. 3:10-cv-12941-DRH-PMF

·

Plaintiff Daniell Smith, member action Melanie Lowrey, et al. v. Bayer
Corp., et al. No. 3:10-cv-12269-DRH-PMF

·

Plaintiffs Ashley Ruby and Kristin Saenz, member action Kristen Saenz, et
al. v. Bayer Corp., et al. 3:10-cv-12977-DRH-PMF

·

Plaintiff Candyce Roberts, member action Michelle Simpkins, et al. v. Bayer
HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13242-DRH-PMF

10

·

Plaintiff Dalynn Dowling, member action Atara Stewart, et al. v. Bayer
HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13243-DRH-PMF

·

Plaintiff Autumn Weatherspoon, member action Liz Westbrook, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13247-DRH-PMF
As to the remaining member actions, the Court instructs the Clerk of the Court

to close each action.
SO ORDERED

David R. Herndon
2012.05.31
14:46:54 -05'00'
Chief Judge
United States District Court

Date: May 31, 2012

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