Harrison et al v. Bayer Corporation et al

Filing 16

ORDER granting 13 Motion to Dismiss WITH prejudice as to the claims of Plaintiffs Chelsea Thomas and Rebecca Watson only. Signed by Chief Judge David R. Herndon on 6/12/2013. (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:
Jennifer Alforejy, et al. v. Bayer
Corp, et al. 1

No. 3:11-cv-12970-DRH-PMF

Stefanie Harrison, et al. v. Bayer Corp,
et al. 2

No. 3:11-cv-12507-DRH-PMF

Dawn Lindley, et al. v. Bayer Corp,
et al. 3

No. 3:11-cv-12574-DRH-PMF

ORDER DISMISSING WITH PREJUDICE
This matter is before the Court on the defendant’s, Bayer HealthCare
Pharmaceuticals Inc., motion, pursuant to Case Management Order 12 (“CMO
12”), for an order dismissing the plaintiffs’ claims, in the above-captioned
matters, with prejudice for failure to comply with Plaintiff Fact Sheet (“PFS”)
obligations.
Presently before the Court is the defendant’s motion to dismiss the claims
of plaintiffs Travonna Asberry, Dawn Lindley, and Christina Smith. For the
reasons discussed below the motion is GRANTED.

1

This order applies only to plaintiffs Jennifer Alforejy, Rhonda Linam and Wendi Westbrook.
This order applies only to plaintiffs Chelsea Thomas and Rebecca Watson.
3
This order applies only to plaintiffs Travonna Asberry, Dawn Lindley and Christina Smith.
2

The above captioned plaintiffs’ claims were dismissed more than 9 months
ago for failure to provide a substantially complete Plaintiff Fact Sheet as required
by CMO 12. The plaintiffs had an additional 60 days from the date of dismissal –
until October 19, 2012 - to produce a complete PFS or, as the Court expressly
warned, face dismissal with prejudice. The above captioned plaintiffs failed to
take any action. As a result, the defendant filed the subject motion to dismiss in
each of the above captioned cases.
Thereafter, counsel for the above captioned plaintiffs filed responsive
pleadings arguing that state law prevents the Court from dismissing their claims
with prejudice. Specifically, the plaintiffs argue that this Court cannot dismiss
their claims with prejudice because a with prejudice dismissal would conflict with
the statutes of limitation or certain savings statutes in each plaintiff’s state of
citizenship. For example, as to plaintiff Travonna Asberry, counsel relies on
Oklahoma savings statute designed to toll the statute of limitations under certain
circumstances (Doc. 10). As to plaintiff Dawn Lindley, counsel relies on
Minnesota’s six year statute of limitations. Specifically, counsel argues that under
Minnesota’s six year statute of limitations, Ms. Lindley has until “6 years from the
commencement of the statute of limitations [to]…correct fact sheet deficiencies”
(Doc. 11).
Counsel’s arguments are without merit. State statutes of limitation or
savings statutes do not authorize the plaintiffs to disregard orders of this Court.
Case Management Order Number 12 (“CMO 12”) is an agreed upon discovery

order applicable to all cases in this multidistrict litigation. Pursuant to CMO 12,
plaintiffs must provide the defendants with a substantially complete Plaintiff Fact
Sheet in a timely manner. Plaintiffs are given repeated opportunities to correct
noncompliance before their case is subject to dismissal without prejudice as a
sanction for failing to comply with this Court’s orders. The same is true with
regard to the provision in CMO 12 allowing for with prejudice dismissal.
In the order dismissing the above captioned actions, the Court warned the
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.” The
plaintiffs in the above captioned cases could have responded by complying with
CMO 12 and asking the Court to vacate the without prejudice dismissal. Instead,
the plaintiffs remain noncompliant and continue to disregard the discovery
requirements applicable to all plaintiffs in this litigation.
The plaintiffs’ conduct exhibits a continued disregard for orders of this
Court and warrants dismissal with prejudice. See Webber v. Eye Corp., 721 F.2d
1067, 1069 (7th Cir. 1983) “When there is a clear record of delay or
contumacious conduct” in a lawsuit, or “when other less drastic sanctions have
proven unavailing,” a court may dismiss a litigant's lawsuit with prejudice”);
Greviskes v. Universities Research Ass'n, Inc., 417 F.3d 752, 758-759 (7th Cir.
2005) (authority to dismiss an action under the court's inherent authority to

sanction). See also Fed. R. Civ. P. 37(b)(2)(C). Although dismissal with prejudice
is a harsh sanction that should be employed sparingly, the above captioned
plaintiffs repeated and flagrant disregard of their obligations in this case make
dismissal with prejudice an appropriate sanction.
Accordingly, pursuant to Section E of CMO 12, the claims of the specified
plaintiffs, in the above captioned actions, are hereby dismissed WITH
prejudice.
Further, the Court DIRECTS the Clerk of the Court to enter judgment
reflecting the same at the close of the above captioned cases.
SO ORDERED:

Digitally signed by
David R. Herndon
Date: 2013.06.12
14:50:47 -05'00'
Chief Judge
United States District Court

Date: June 12, 2013