Kanazi v. Bayer Corporation et al

Filing 7

ORDER granting 6 Motion to Dismiss. The member action is dismissed WITHOUT prejudice for failure to comply with Plaintiff Fact Sheet Requirements. Signed by Chief Judge David R. Herndon on 9/20/2012. (dsw)

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

)
)
)
)
)

3:09-md-02100-DRH-PMF
MDL No. 2100

This Document Relates to:
Stacey Altman v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12846-DRH-PMF

Rene Cauchi, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al. 1

No. 3:11-cv-13223-DRH-PMF

Vera Conner, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al. 2

No. 3:11-cv-13149-DRH-PMF

Elizabeth Dinkel v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13280-DRH-PMF

Misty Gannon v. Bayer Corp., et al.

No. 3:11-cv-12637-DRH-PMF

Coesha Jackson v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13111-DRH-PMF

Susan Jennings v. Bayer Corp., et al.

No. 3:11-cv-12990-DRH-PMF

Rania Kanazi v. Bayer Corp., et al.

No. 3:11-cv-12965-DRH-PMF

Daysha Kelly v. Bayer Pharma AG, et al.

No. 3:11-cv-12320-DRH-PMF

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

No. 3:11-cv-12948-DRH-PMF

Kaitlyn Lester, et al. v. Bayer Corp., et al. 3

No. 3:11-cv-13373-DRH-PMF

1

This order applies only to plaintiff Rene Cauchi.

2

This order applies only to plaintiff Cheryl McMillan.

3

This order applies only to plaintiffs Tiahna Reid and Brentney ShelbourneGreen.

Meredith Mach v. Bayer Corp., et al.

No. 3:11-cv-13184-DRH-PMF

Erin and C. John Martinez v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13361-DRH-PMF

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

No. 3:11-cv-13222-DRH-PMF

Elizabeth Moore-Berry, et al. v.
Bayer HealthCare Pharmaceuticals, Inc., et al. 4

No. 3:11-cv-13131-DRH-PMF

Roseanna Morris, et al. v. Bayer Corp., et al. 5

No. 3:11-cv-13374-DRH-PMF

Adria Redick, et al. v. Bayer Corp., et al. 6

No. 3:11-cv-13372-DRH-PMF

Brittany Roberts v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11575-DRH-PMF

Joi Robinson v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-12950-DRH-PMF

Diana Seymour v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-11243-DRH-PMF

Sammer Yacoub v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13136-DRH-PMF

ORDER OF DISMISSAL WITHOUT PREJUDICE
(Failure To Comply With PFS Obligations)
Herndon, Chief Judge,
This matter is before the Court on the Bayer defendants’ motion, pursuant
to Case Management Order 12 (“CMO 12”) 7 for an order of dismissal, without

4

This order applies only to plaintiff Elizabeth Moore-Berry.

5

This order applies only to plaintiff Roseanna Morris.

6

This order applies only to plaintiff Carrie Hamilton.

7

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

2

prejudice, of the plaintiffs’ claims in the above captioned cases for failure to
comply with their Plaintiff Fact Sheet (“PFS”) obligations. 8
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 PFSs on or before April 21, 2012. (See e.g., Altman No. 3:11cv-12846-DRH-PMF Doc. 6-1). 9 Per Section E of CMO 12, Notice of Overdue
Discovery was sent on May 14, 2012. (See e.g., Altman No. 3:11-cv-12846-DRH-

8

Bayer’s motion to dismiss also sought dismissal of the following actions: Laura
Cerossimo v. Bayer Corp., et al. No. 3:11-cv-12650-DRH-PMF; Danielle Snyder
v. Bayer Corp., et al. No. 3:11-cv-12918-DRH-PMF; Christina and Arnold
Valenzuela, Jr. v. Bayer Corp., et al. No. 3:11-cv-13038-DRH-PMF; and Emily
Wills v. Bayer Corp., et al. No. 3:11-cv-13186-DRH-PMF. Bayer has since
withdrawn its motion to dismiss as to these actions.
9
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 Altman No. 3:11-cv12846-DRH-PMF Docs. 6, 6.1, 6.2).
3

PMF Doc. 6-2). 10 Plaintiffs’ completed PFSs are thus more than five months
overdue. 11
Under Section E of CMO 12, the plaintiffs were given 14 days from the
date of Bayer’s motion, in this case 14 days from July 2, 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. 12
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.
10

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.
11
Bayer states that it received some medical records from plaintiff Susan
Jennings (Case No. 3:11-cv-12990) on June 25, 2012, but it has not received her
PFS or other required disclosures.
12

Responses to Bayer’s motion to dismiss were due 14 days from July 2, 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).
4

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.
So Ordered:

Date: September 20, 2012

Digitally signed by
David R. Herndon
Date: 2012.09.20
17:02:08 -05'00'
Chief Judge
United States District Court

5