Sabrina Lane et al v Bayer Corporation et al
Filing
22
ORDER granting 14 Motion to Dismiss. Order of dismissal without prejudice for failure to comply with PFS requirements applies to plaintiffs Barnes-Mosley, Barron, Barzee, Beasley, Brink, Brown, Bryant, Casto, Cerda, Champion, Cheatteam, Childress, Christophel, Churilla, Clough, Cooper, Corley, Corona, Crabtree, E. Davis, L. Davis, Donahue, Dooley, K. Edwards, W. Edwards, Ellis, Vargas, Watton, Wheeler, White. Signed by Chief Judge David R. Herndon on 2/28/2012. (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
Diana DeLuna, et al. v.
Bayer Corp., et al.1 No. 3:11-cv-20001-DRH-PMF
Keri Griesbach, et al. v.
Bayer Corp., et al.2 No. 3:11-cv-20003-DRH-PMF
Sabrina Lane, et al. v.
Bayer Corp., et al.3 No. 3:11-cv-20002-DRH-PMF
1
This motion applies to plaintiffs (1) Josephine Flores, (2) Melissa Franic,
(3) Courtney Fultz, (4) Donna Gabbard, (5) Tamiko Hardy, (6) Tami Harvell,
(7) Brenda Howard, (8) Angela Justice, (9) Meagan Kirk, (10) Kimberly Koerner,
(11) Savanna Raether, (12) Lutwan Rayford, (13) Jocelyn Reynolds, (14) Krissy
Swyers, and (15) Ciera Teal. Plaintiffs, Tracy Gilkison and Tiffany Kaeppner,
were initially included in the Bayer defendants’ motion to dismiss. However,
Bayer subsequently withdrew their motion to dismiss at to plaintiffs Tracy
Gilkison and Tiffany Kaeppner (Deluna, Doc. 17).
2
This motion applies to plaintiffs (1) Susan Lyons, (2) Tracy Maden,
(3) Franchesca Martin, (4) Kelli McCrae, (5) Lori Miller, (6) Arlene Monroe,
(7) Shelli Ness, (8) Lori Padgett, (9) Ellen Petrina, (10) Romona Pullins,
(11) Samantha Quiles, (12) Amye Quinn, (13) Brandi Schneider, (14) Jennifer
Smith, (15) Stacie Stelly, (16) Amanda Stephens, (17) Kelsey Timbs, (18) Kina
Williams, (19) Danielle Williams-Hopkins, (20) Ginna Wolfe, and (21) Laura Ann
Wood.
3
This motion applies to plaintiffs (1) Ashley Barnes-Mosley, (2) Brandy Barron,
(3) Lindsey Bartels, (4) Christine Barzee, (5) Donna Beasley, (6) Mindy Brink,
(7) Alyson Brown, (8) Kelly Bryant, (9) Shawna Casto, (10) Guadalupe Cerda,
(11) Tosha Champion, (12) Nekeshia Cheatteam, (13) Markita Childress,
(14) Paige Christophel, (15) Kathryn Churilla, (16) Katherine Clough, (17) Marie
Cooper, (18) Toni Corley, (19) Ashley Corona, (20) Shellena Crabtree,
(21) Esmeralda Davis, (22) LaTosha Davis, (23) Julia Donahue, (24) Ashley
Dooley, (25) Kimberly Edwards, (26) Wendy Edwards, (27) Sonya Ellis,
ORDER DISMISSING WITHOUT PREJUDICE
I. INTRODUCTION
Herndon, Chief Judge
This matter is before the Court on the Bayer Defendants’ motion, pursuant
to Case Management Order 12 (“CMO 12”),4 for an order dismissing plaintiffs’
claims in the above-captioned matters without prejudice for failure to comply with
their Plaintiff Fact Sheet (“PFS”) obligations.
II. BACKGROUND
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.”
(28) Angela Vargas, (29) Tonya Watton, (30) Lindsey Wheeler, and (31) Denise
White.
4
The Parties negotiated and agreed to CMO 12, which expressly provides that the
discovery required of plaintiffs is not objectionable. CMO 12 § A(2).
Accordingly, Plaintiffs in the above-captioned matters were to have served
completed PFSs on or before May 21, 2011. See 3:11-cv-20001-DRH-PMF Doc.
17-1.5 In their motion to dismiss, Bayer stated that although the Plaintiffs in the
above-captioned matters had served PFSs, each PFS is not “substantially
complete” as required by CMO 12 (3:11-20001-DRH-PMF Doc. 17).
Bayer
properly notified each Plaintiff that her PFS was not “substantially complete” as
required by CMO 12. See 3:11-cv-20001 Doc. 17-2.
On February 9, 2012, plaintiffs filed an unopposed motion for extension of
time to respond to the Bayer defendant’s motion to dismiss (up to and including
February 15, 2012).
See 3:11-cv-20001 Doc. Doc. 23.
In their motion for
extension, plaintiffs’ counsel states that prior to receiving correspondence from
Bayer, they had been providing executed authorizations without the name and
address of the provider, facility, or pharmacy and thought that was all that was
required under CMO 12.
Id. In its correspondence, Bayer informed plaintiffs’
counsel that this practice was insufficient under CMO 12. Plaintiffs’ counsel also
states that although they believe CMO 12 was ambiguous on this matter, they
would work to provide the Bayer defendants with revised PFS materials.
The
Court clearly addressed this issue on July 9, 2010, in a minute order (MDL 2100
Doc. 1221).
5
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 Diana DeLuna, et al.
v. Bayer Corp., et al.5 No. 3:11-cv-20001-DRH-PMF.
That minute order (which is also posted on the Court’s MDL website) provides in
full:
07/09/2010
1221 MINUTE ORDER re 836 The Court wants to remind all Plaintiffs and
all Plaintiffs' counsel that it is their obligation under CMO 12 (Doc. 836
) to provide a Plaintiff Fact Sheet that is substantially complete and to
provide completely executed Authorizations (other than leaving the date
blank). This means that the Plaintiff must sign all of the Authorizations
and must also fill in all of the information in the Authorization. This
includes the name of the records provider to whom the Authorization
will be sent, the Plaintiff's name, the Plaintiff's social security number
and date of birth, and all of the other information contained in the
Authorization form. It is the Plaintiff's obligation to fill out the
Authorization form completely and properly. Signed by Chief Judge
David R. Herndon on 7/9/2010. (dsw)THIS TEXT ENTRY IS AN
ORDER OF THE COURT. NO FURTHER DOCUMENTATION
WILL BE MAILED. (Entered: 07/09/2010)
Thus, plaintiffs are clearly required to provide the information that the Bayer
defendants are requesting.
On February 15, 2012 plaintiffs responded to the motion to dismiss stating
that certain plaintiffs are now in compliance with their PFS obligations. As to the
remaining plaintiffs, plaintiffs simply state that they are working to comply.
On February 17, 2012, the Bayer defendant’s replied to plaintiff’s response.
The Bayer defendants state that some of the responding plaintiffs have submitted
some supplemental PFS materials to Bayer but only two have submitted
“substantially complete” PFS materials as required by CMO 12.
III. SUMMARY OF DEFICIENCIES
The following lists summarize the plaintiffs identified in the Bayer
defendants’ motion to dismiss as being deficient, the response as to each plaintiff,
and the Bayer defendants’ reply as to each plaintiff.
Diana DeLuna, et al. v. Bayer Corp., et al.
No. 3:11-cv-20001-DRH-PMF
The following plaintiffs were identified in the motion to dismiss as having
deficient PFS materials:
x
x
x
x
x
x
x
x
x
Josephine Flores
Melissa Franic
Courtney Fultz
Donna Gabbard
Tracy Gilkison
Tamiko Hardy
Tami Harvell
Brenda Howard
Angela Justice
x
x
x
x
x
x
x
x
Tiffany Kaeppner
Meagan Kirk
Kimberly Koerner
Savanna Raether
Lutwan Rayford
Jocelyn Reynolds
Krissy Swyers
Ciera Teal
Bayer subsequently withdrew its motion to dismiss as to plaintiffs Tracy
Gilkison and Tiffany Kaeppner, leaving fifteen plaintiffs in issue (Deluna, Doc.
17). With regard to the remaining fifteen plaintiffs, plaintiffs respond stating that
two of the fifteen (Savanna Raether and Jocelyn Reynolds) are now in compliance
with PFS obligations.
As to the remaining thirteen plaintiffs, plaintiffs simply
state that they are working to achieve compliance. Bayer responds, stating that
neither Savanna Raether nor Jocelyn Reynolds is in compliance with her PFS
obligations.
After reviewing the information provided by the Bayer defendants, the Court
concludes that Savanna Raether and Jocelyn Reynolds have not substantially
complied with their PFS obligations. In addition, the remaining thirteen plaintiffs
have not substantially complied with their PFS obligations. Accordingly, none of
the fifteen plaintiffs in issue has complied with the PFS obligations, which
were due on or before May 21, 2011.
Keri Griesbach, et al. v. Bayer Corp., et al.
No. 3:11-cv-20003-DRH-PMF
The following plaintiffs were identified in the motion to dismiss as having deficient
PFS materials:
x
x
x
x
x
x
x
x
x
x
x
Susan Lyons
Tracy Maden
Franchesca Martin
Kelli McCrae
Lori Miller
Arlene Monroe
Shelli Ness
Lori Padgett
Ellen Petrina
Romona Pullins
Samantha Quiles
x
x
x
x
x
x
x
x
x
x
Amye Quinn
Brandi Schneider
Jennifer Smith
Stacie Stelly
Amanda Stephens
Kelsey Timbs
Kina Williams
DanielleWilliamsHopkins
Ginna Wolfe
Laura Ann Wood
Plaintiffs state that three of the twenty-one plaintiffs in issue (Romona
Pullins, Jennifer Smith, and Kina Williams), are now in compliance with their
PFS obligations. With regard to the remaining eighteen plaintiffs, plaintiffs simply
state that they are working to achieve compliance. Bayer responds, stating that
only Jennifer Smith has substantially complied with her PFS obligations.
After reviewing the information provided by the Bayer defendants, the Court
concludes that, with the exception of Jennifer Smith, none of the plaintiffs in issue
has substantially complied with the PFS requirements. Accordingly, only one of
the identified plaintiffs, Jennifer Smith, has complied with her PFS
obligations, which were due on or before May 21, 2011.
Sabrina Lane, et al. v. Bayer Corp., et al.
No. 3:11-cv-20002-DRH-PMF
The following plaintiffs were identified in the motion to dismiss as having deficient
PFS materials:
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
Ashley Barnes-Mosley
Brandy Barron
Lindsey Bartels
Christne Barzee
Donna Beasley
Mindy brink
Alyson Brown
Kelly Bryant
Shawna Casto
Guadalupe Cerda
Tosha Champion
Nekeshia Cheatteam
Markita Childress
Paige Christophel
Kathryn Churilla
Katherine Clough
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
Marie Cooper
Toni Corley
Ashley Corona
Shellena Crabtree
Esmeralda Davis
Latosha Davis
Julia Donahue
Ashley Dooley
Kimberly Edwards
Wendy Edwards
Sonya Ellis
Angela Vargas
Tonya Watton
Lindsey Wheeler
Denise White
Plaintiffs respond, stating that, of the thirty-one plaintiffs in issue, the
following fourteen plaintiffs are now in compliance with their PFS obligations:
x
x
x
x
x
x
x
Bartels, Lindsey
Beasley, Donna
Brown, Alyson
Bryant, Kelly
Cheatheam, Nekeshia
Clough, Katherine
Cooper, Marie
x
x
x
x
x
x
x
Corona, Ashley
Dooley, Ashley
Edwards, Wendy
Vargar, Angela
Watton, Tonya
Wheeler, Lindsey
White, Denise
With regard to the seventeen plaintiffs, plaintiffs simply state that they are
working to achieve compliance. Bayer responds, stating that only Lindsey Bartels
has substantially complied with her PFS obligations.
After reviewing the information provided by the Bayer defendants, the Court
concludes that, with the exception of Lindsey Bartels, none of the identified
plaintiffs has provided a substantially complete PFS. Accordingly, only one of
the identified plaintiffs, Lindsey Bartels, has complied with the PFS
obligations, which were due on or before May 21, 2011.
IV. ANALYSIS
Considering the requirements of CMO 12 and the relevant pleadings, the
Court finds that, with the exception of plaintiffs Lindsey Bartels (the Lane
case) and Jennifer Smith (the Griesbach case) the plaintiffs that are the
subject of the Bayer defendant’s motion to dismiss have failed to timely
comply with their PFS obligations. These plaintiffs’ PFS materials were due on
or before May 21, 2011. Plaintiffs have had more than enough time to provide the
required materials. Accordingly, the Court is dismissing the claims of the noncompliant plaintiffs (listed below) for failure to comply with their PFS
requirements. The Court refers plaintiffs to CMO 12 and to its Minute Order,
dated July 9, 2010 (MDL 2100 Doc. 1221) (and copied in full above), with regard
to any additional questions as to their PFS obligations.
Further, the Court notes that, pursuant to CMO 12, plaintiffs have 60
days from the entry of this order to provide substantially complete PFS
materials before their cases are converted into dismissals with prejudice.
This gives plaintiffs more than enough time to address the relevant deficiencies in
their PFS materials.
V. CONCLUSION
The Court therefore ORDERS that the claims of the following plaintiffs be
dismissed without prejudice for failure to comply with PFS obligations:
Diana DeLuna, et al. v. Bayer Corp., et al.
No. 3:11-cv-20001-DRH-PMF
x
x
x
x
x
x
x
Josephine Flores
Melissa Franic
Courtney Fultz
Donna Gabbard
Tamiko Hardy
Tami Harvell
Brenda Howard
x
x
x
x
x
x
x
Angela Justice
Meagan Kirk
Kimberly Koerner
Savanna Raether
Lutwan Rayford
Jocelyn Reynolds
Krissy Swyers
x
Ciera Teal
Keri Griesbach, et al. v. Bayer Corp., et al.
No. 3:11-cv-20003-DRH-PMF
x
x
x
x
x
x
x
x
x
x
x
Susan Lyons
Tracy Maden
Franchesca Martin
Kelli McCrae
Lori Miller
Arlene Monroe
Shelli Ness
Lori Padgett
Ellen Petrina
Romona Pullins
Samantha Quiles
x
x
x
x
x
x
x
x
x
Amye Quinn
Brandi Schneider
Stacie Stelly
Amanda Stephens
Kelsey Timbs
Kina Williams
Danielle WilliamsHopkins
Ginna Wolfe
Laura Ann Wood
Sabrina Lane, et al. v. Bayer Corp., et al.
No. 3:11-cv-20002-DRH-PMF
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
Ashley Barnes-Mosley
Brandy Barron
Christne Barzee
Donna Beasley
Mindy brink
Alyson Brown
Kelly Bryant
Shawna Casto
Guadalupe Cerda
Tosha Champion
Nekeshia Cheatteam
Markita Childress
Paige Christophel
Kathryn Churilla
Katherine Clough
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
Marie Cooper
Toni Corley
Ashley Corona
Shellena Crabtree
Esmeralda Davis
Latosha Davis
Julia Donahue
Ashley Dooley
Kimberly Edwards
Wendy Edwards
Sonya Ellis
Angela Vargas
Tonya Watton
Lindsey Wheeler
Denise White
Further, 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
David R. Herndon
2012.02.28
17:12:52 -06'00'
Chief Judge
United States District Court
Date: February 28, 2012
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