Adams et al v. Bayer Healthcare Pharmaceuticals Inc et al

Filing 13

ORDER GRANTING 9 MOTION to Dismiss With Prejudice - Plaintiffs Shaelee Garrison, Valerie Myers Only. The claims of plaintiffs Shaelee Garrison and Valerie Myers are DISMISSED WITH PREJUDICE. The Court DIRECTS the Clerk of the Court to enter JUDGMENT reflecting the same AT THE CLOSE OF THE CASE. Signed by Chief Judge David R. Herndon on 7/16/2013. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
------------------------------------------------------------

X

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:

Judge David R. Herndon

Rebecca Adams, et al. v. Bayer HealthCare
Pharmaceuticals, Inc., et al. No. 3:11-cv13025-DRH-PMF

ORDER DISMISSING WITH PREJUDICE
HERNDON, Chief Judge:
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 claims of plaintiffs Shaelee Garrison and Valerie
Myers, with prejudice, for failure to comply with Plaintiff Fact Sheet (“PFS”)
obligations. For the reasons discussed below the motion is GRANTED.
The claims of plaintiffs Garrison and Myers were dismissed without
prejudice on June 29, 2012 for failure to provide a substantially complete PFS as
required by CMO 12. The plaintiffs had an additional 60 days from the date of
dismissal 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 with prejudice.

A responsive pleading was filed on behalf of plaintiff Shaelee Garrison. In
that response, counsel argues that state law prevents the Court from dismissing
plaintiff Garrison’s claims with prejudice. Specifically, counsel argues that under
an Oklahoma savings statute plaintiff Garrison, an Oklahoma resident, has one
year to re-file her complaint. 1
Counsel’s argument is without merit. State statutes of limitation or savings
statutes do not allow plaintiff Garrison to disregard orders of this Court. 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 PFS 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 claims of plaintiffs Garrison and Myers, 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 could have responded by complying with CMO 12 and
asking the Court to vacate the without prejudice dismissal. Instead, the plaintiffs
1

Counsel also cites to an Illinois statute an irrelevant Illinois statute. See Doc. 10 p. 2 citing to §
735 ILCS 5/13-217.

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 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 plaintiffs
Shaelee Garrison and Valerie Myers 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: 2013.07.16
17:41:55 -05'00'
Chief Judge
United States District Court

Date: July 16, 2013