Baker v. Bayer Healthcare Pharmaceuticals Inc et al

Filing 9

ORDER granting 8 This member action is dismissed Without Prejudice for failure to comply with Plaintiff Fact Sheet Requirements. Signed by Chief Judge David R. Herndon on 11/2/2012. (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

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

This Document Relates to:
Jennifer Adams v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10114-DRH-PMF

Jessica and Cheyenne Allen v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13141-DRH-PMF

Kim Allen v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10251-DRH-PMF

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

No. 3:11-cv-13557-DRH-PMF

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

No. 3:11-cv-13569-DRH-PMF

Christina Berninger v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10064-DRH-PMF

Emily Berry v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10118-DRH-PMF

Courtney Bigel v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13405-DRH-PMF

Rebecca Boren v. Bayer Corp., et al.

No. 3:11-cv-13604-DRH-PMF

Tara and Michael Burns v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10065-DRH-PMF

Katherine Campbell v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10161-DRH-PMF

Jillian Carpenter v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10269-DRH-PMF

Laquita Coates v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10144-DRH-PMF

Deborah Cobb v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10090-DRH-PMF

Nicole Daigle v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13466-DRH-PMF

Shelley Darby v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13302-DRH-PMF

Christina DiPierro v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10062-DRH-PMF

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

No. 3:11-cv-13556-DRH-PMF

Christine Dorries v. Bayer Corp., et al.

No. 3:11-cv-12629-DRH-PMF

Tunisia Fitch v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10038-DRH-PMF

Ana Gadsby v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13562-DRH-PMF

Anissa Gallifent v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10155-DRH-PMF

Kimberly and John Hasenberg v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13305-DRH-PMF

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

No. 3:11-cv-13576-DRH-PMF

Monisce James v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10182-DRH-PMF

Jolene Jaquez v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13422-DRH-PMF

2

Cheryl Kan v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13419-DRH-PMF

Rebecca Kinsey v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13463-DRH-PMF

Karen Kirk v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10115-DRH-PMF

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

No. 3:11-cv-13464-DRH-PMF

Amber Melvin v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13312-DRH-PMF

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

No. 3:11-cv-13577-DRH-PMF

Nicole Padilla v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13467-DRH-PMF

Deshinae Petetant v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13432-DRH-PMF

Sonya and Martin Porges v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13303-DRH-PMF

Caurie Putnam v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10117-DRH-PMF

Carole Reed v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13496-DRH-PMF

Laura Rencher v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13613-DRH-PMF

Chantelle Sawyer v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10036-DRH-PMF

Lisa Shortridge v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10043-DRH-PMF

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

No. 3:12-cv-10057-DRH-PMF

3

Debra Ward v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10041-DRH-PMF

Chiquita Warren v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13306-DRH-PMF

Whitney Wauters v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13618-DRH-PMF

Kate Wilson v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:11-cv-13313-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”) 1 for an order of dismissal, without
prejudice, of the plaintiffs’ claims in the above captioned cases for failure to
comply with Plaintiff Fact Sheet (“PFS”) obligations.
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.”

1

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

4

Accordingly, Plaintiffs in the above-captioned matters were to have served
completed PFSs on or before June 22, 2012.
10114-DRH-PMF Doc. 6-1). 2

(See e.g., Adams No. 3:12-cv-

Per Section E of CMO 12, Notice of Overdue

Discovery was sent on or before July 17, 2012. (See e.g., Adams No. 3:12-cv10114-DRH-PMF Doc. 6-2). 3 As of the filing of Bayer’s motion to dismiss, Bayer
still had not received completed PFS materials from the plaintiffs in the abovecaptioned matters. As of the filing of this order, the above captioned plaintiffs
PFS materials are more than three months overdue.
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 September 25, 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. 4

2

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 Adams No. 3:12-cv10114-DRH-PMF Docs. 6, 6.1, 6.2).
3
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.
4
Responses to Bayer’s motion to dismiss were due 14 days from September 25,
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
5

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 the 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:

Digitally signed by
David R. Herndon
Date: 2012.11.02
10:13:39 -05'00'

Chief Judge
United States District Court

Date: November 2, 2012

times allowed under the rules and do not consider special circumstances (such as
court orders specific to a particular case or issue).
6