Robb v. Bayer Healthcare Pharmaceuticals Inc et al

Filing 19

ORDER DISMISSING CASE WITH PREJUDICE PURSUANT TO CMO 78. The Court DIRECTS the Clerk to Enter Judgment. Signed by Judge David R. Herndon on 4/7/2016. (dsw) Modified on 4/8/2016 (rah).

IN THE UNITED STATES DISTRICT COURT
FOR THE 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:
Kelly Robb v. Bayer HealthCare
Pharmaceuticals Inc., et al.

No. 3:11-cv-11892-DRH-PMF

Elsa Sanchez, individually and as Successor-Interest
to the Estate of Isla Sanchez, deceased and as
personal representative of the Estate of Isla Sanchez,
deceased v. Bayer HealthCare Pharmaceuticals
Inc., et al.

No. 3:11-cv-11687-DRH-PMF

ORDER DISMISSAL WITH PREJUDICE
HERNDON, District Judge:
On February 8, 2016, Bayer moved to dismiss the claims of the above
captioned plaintiffs, with prejudice, pursuant Case Management Order 78 (“CMO
78”). Pursuant to CMO 78, plaintiffs had 30 days to respond and show good
cause why the cases should not be dismissed. However, in light of the withdrawal
of plaintiffs’ attorney, the Court granted each plaintiff an extension, until March
21, 2016, to respond to the pending motions to dismiss. The Court warned the
plaintiffs that failure to timely respond would result in a with prejudice dismissal
of the actions.

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Despite the extension, the above captioned plaintiffs have failed to respond.
Under the Court’s Local Rule 7.1, plaintiff’s failure to file a timely response is
deemed an admission of the merits of the motion. SDIL LOCAL RULE 7.1(c).
CMO 78 establishes a procedure to assure that plaintiffs who choose to
litigate ATE injury claims act to preserve their medical records. CMO 78 applies
to all Eligible Claimants as defined in the ATE Master Settlement Agreement who
elect not to participate in the voluntary ATE Resolution Program.
Pursuant to CMO 78, a plaintiff must send document preservation notices
to certain pharmacies, medical facilities, and doctors (id. § I.A ). They must also
provide Bayer with a statement verifying the notices were sent, the names and
addresses of all individuals or entities to which notices were sent, and copies of
the notices (id. § I.C). If plaintiffs do not comply by a deadline set by the CMO,
Bayer must send a letter giving the plaintiff 20 days to cure the deficiency. Id. §
I.D. If the plaintiff still does not comply, Bayer shall file a Motion with the Court
listing plaintiffs who failed to cure deficiencies within the Cure Period and whose
cases should therefore be dismissed with prejudice. Id. “Any Plaintiff’s failure
to respond within the specified period shall lead to the dismissal of the
Plaintiff’s case with prejudice, the parties to bear their own costs, except for
good cause shown.” Id. (emphasis added).
As outlined in Bayer’s motion to dismiss, the above captioned plaintiffs are
subject to the requirements of CMO 78 and are not in compliance with the same.
Accordingly, after following the procedures required under CMO 78, Bayer filed

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the subject motion to dismiss. The above captioned plaintiffs failed to file an
opposition to Bayer’s motions to dismiss. Therefore, as provided for in CMO 78,
the above captioned plaintiffs’ claims must be dismissed with prejudice.
The Court therefore GRANTS the motions to dismiss the claims of the
above captioned plaintiffs. The claims of the above captioned plaintiffs are
DISMISSED WITH PREJUDICE. FURTHER, this Order Closes the case and
the Court DIRECTS the Clerk to enter judgment.
IT IS SO ORDERED.
Signed this 7th day of April, 2016.

Digitally signed by
Judge David R.
Herndon
Date: 2016.04.07
15:29:59 -05'00'
United States District Court

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