Alexander v. Abbott Laboratories Inc

Filing 709

ORDER re Show Cause Order (639 in 3:12-cv-00052-NJR-SCW), (651 in 3:12-cv-00052-NJR-SCW). See text of the Order for further detail. Signed by Judge Nancy J. Rosenstengel on 12/13/2016. (Attachments: # 1 Exhibit 1) Associated Cases: 3:12-cv-00052- NJR-SCW, 3:12-cv-00053-NJR-SCW, 3:12-cv-00057-NJR-SCW, 3:12-cv-00163-NJR-SCW, 3:12-cv-00694-NJR-SCW, 3:12-cv-00824-NJR-SCW, 3:12-cv-01091-NJR-SCW, 3:13-cv-00134-NJR-SCW, 3:13-cv-00622-NJR-SCW, 3:13-cv-01061-NJR-SCW, 3:13-cv-01312-NJR-SCW, 3:14-cv-00425-NJR-SCW, 3:14-cv-01248-NJR-SCW, 3:15-cv-00472-NJR-SCW. jmw

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE DEPAKOTE:
RHEALYN ALEXANDER, et al.,
Plaintiffs,
vs.
ABBOTT LABORATORIES, INC.,
Defendant.

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Case No. 12-CV-52-NJR-SCW
LEAD CONSOLIDATED CASE

ORDER
ROSENSTENGEL, District Judge:
On October 24, 2016, the Court issued an Order to Show Cause as to why certain
cases should not be dismissed for failure to follow a Court Order.1 (Doc. 639). This was
the second Order to Show Cause concerning the failure by certain Plaintiffs to comply
with the requirement to provide claim forms to Defendants. (See Doc. 639) (providing a
full recitation of the procedural history of the claim forms issue). In the October 24
Order, the Court warned that failure to file a response by the deadline of November 8,
2016, would result in an immediate dismissal. A variety of responses were filed by some,
but not all, of the delinquent Plaintiffs before the deadline passed.
From the outset, the Court is compelled to note that a small group of Plaintiffs
continues to monopolize the Court’s attention. Whether it is blatantly failing to plead
diversity jurisdiction, accidently dismissing Plaintiffs through filing an incorrect

The October 24 Order to Show Cause was subsequently clarified to expressly exclude all cases filed after
the relevant December 2015 deadline. (Doc. 651).

1

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Amended Complaint, 2 or failing to comply with Orders of the Court, these Plaintiffs are
drawing upon a disproportionate and unreasonable amount of the Court’s time and
resources. (See Doc. 667) (concerning the failure to properly allege diversity jurisdiction);
see also Case No. 12-cv-1091 (Doc. 59) (concerning the “inadvertent” dismissal of several
Plaintiffs’ claims).
Even without these errors, the unique nature of the Depakote mass action
continues to challenge the Court’s ability to manage the docket. For example, the current
litigation is not appropriately consolidated under Rule 23 despite having many of the
burdensome characteristics of a class action. Additionally, because the majority of cases
were directly filed in the Southern District of Illinois, the mass action avoided the MDL
process thereby eliminating the resources and tools usually available for taming
complex litigation. 3 These challenges are exponentially compounded by repeated
substantive mistakes and failures to comply with the Court’s Orders.
The Court does not view Plaintiffs as one giant party to be held accountable for
each other’s actions. Indeed, the vast majority of litigants and counsel are doing exactly
what is expected and required when proceeding in federal court. Nevertheless, all
parties must be mindful that every minute the Court spends dealing with these
completely avoidable issues is time taken from the resolution of the mass action. With
that in mind, the Court will address each of the Plaintiffs in detail below.
The Court has no doubt that these first two errors were caused by a combination of the habitual “copy
and paste” practice of litigation combined with a failure of attention to detail.
3 Outside of the Depakote litigation, the Court maintains a full caseload of over 300 active civil cases in
various stages of the judicial process, in addition to a full criminal docket. The Depakote litigation added
an additional 134 cases to the Court’s caseload. The Court gratefully notes that the Seventh Circuit recently
provided temporary funding for an additional law clerk to assist with mass action. The added manpower
has dramatically increased the Court’s ability to manage the docket and advance the Depakote litigation
and must be fully utilized before it ends.
2

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Nonresponsive Plaintiffs
In their supplemental response to the original Order to Show Cause entered on
May 16, 2016, Plaintiffs indicated that a number of Plaintiffs were “nonresponsive” to
counsel. (Doc. 480). Those same individuals, listed below in Table 1, failed to provide
any response to the second Order to Show Cause. It has almost been a year since the
original deadline elapsed; these Plaintiffs have had ample time to comply with multiple
Orders of the Court.
At the Status Conference, Lead Plaintiffs’ Counsel requested an additional thirty
days to allow counsel to try to get in touch with the clients in question. Each counsel was
aware as of May 2016 that the listed Plaintiffs were nonresponsive and that every effort
needed to be made to contact these Plaintiffs. Also, for any Plaintiff who could not be
reached, counsel could have filed a motion for an extension of time to comply with the
Court Order before the November 8 deadline instead of waiting until the November 17
Status Conference to make such a request. The Court has no confidence that an
additional thirty, sixty, or even 365 day extension would make a difference, because the
evidence before the Court strongly suggests that these Plaintiffs have abandoned their
claims (in fact, almost thirty days have passed since the status conference, and still
nothing has been filed). Therefore, the request for additional time is DENIED.
The Court is faced with a set of Plaintiffs who were aware of the requirements to
provide the most basic of information to Defendants and failed to do so. See Exhibit 1 (a
draft copy of the claim form Plaintiffs were to provide). Instead of complying with the
Court’s Order, they cut off all communication for almost a year and counting. The Court

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warned that dismissal with prejudice was a possible outcome if the parties failed to
respond to the second Order to Show Cause. (Doc. 639, at pp. 2-3). It is undisputed that
dismissal of these actions for failure to follow a Court Order and failure to prosecute is
warranted under the circumstances. Plaintiffs argue, however, that any dismissal should
be without prejudice because there are minors involved. (Doc. 692, at p. 40) (“The only
thing I would ask is, we’re dealing with children, and I don’t think that it’s appropriate
to dismiss their case with prejudice on account of their mother or father being a poor
representative for their claim.”)
Dismissal with prejudice is a harsh sanction that can be employed when Plaintiffs
demonstrate a pattern of dilatory or contumacious behavior. Patterson by Patterson v.
Coca-Cola Bottling Co. Cairo-Sikeston, 852 F.2d 280, 285 (7th Cir. 1988). The Court is
satisfied that such behavior has been demonstrated by the adult Plaintiffs listed in Table
1. By failing to comply with a Court Order and then engaging in “radio silence” for
almost a year and counting, Plaintiffs have demonstrated a disregard for the judicial
process. Accordingly, the individual claims of the adult representatives listed in Table 1
are DISMISSED with prejudice; this includes their ability to serve as the future
representative of the associated minor child in any Depakote litigation.
As to the minor Plaintiffs listed in Table 1, the case of Patterson by Patterson v.
Coca-Cola Bottling Co. Cairo-Sikeston (“Patterson”) is instructive as to how the Court
should proceed. 852 F.2d 280 (7th Cir. 1988). In Patterson, the Seventh Circuit affirmed a
dismissal with prejudice of a minor’s claim for failing to cooperate in discovery and for
repeated failures to comply with Court Orders. In doing so, the Court distinguished the

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“long established” duty of the Court to safeguard a minor’s interest by pointing out that
all litigants are bound by the conduct of their attorney and by noting the repeated
failures to comply with Court Orders. Id. at 284. While the Court finds the conduct in
question sufficiently egregious to warrant severe sanctions, the fact that the minor
Plaintiffs are the real parties in interest and the conduct in question appears to be
attributable entirely to the actions of their representatives, dismissal with prejudice of
their claims is not warranted. Accordingly, the individual claims of the minor Plaintiffs
listed in Table 1 are DISMISSED without prejudice. 4
The culpability for this circumstance does not rest exclusively with the individual
Plaintiffs or even their representatives. When the Court set the December 31, 2015
deadline, it was the duty of each counsel to ensure compliance by Plaintiffs with the
Court Order. The Court assumes that each counsel, as officers of the Court, executed this
duty and knew, as of January 1, 2016, which Plaintiffs where not in compliance with the
Court Order and why. Yet it was not until five months later (and only after the issuance
of an Order to Show Cause), that the Court was alerted that these Plaintiffs were
nonresponsive. The same absence of communication permeated the most recent Order to
Show Cause responses. Instead of informing the Court as to the status of the parties in
question, as some counsel correctly chose to do, for nearly twenty-three Plaintiffs, no
response or indication was received. The Court can appreciate that Plaintiffs’ primary
focus may be on the large number of meritorious cases within the mass action, but the

The counsel for Plaintiffs Janet Woolfolk, individually and as next friend of A.W., and Rhealyn
Alexander, individually and next friend of E.I. filed a Motion to Withdraw as Counsel due to an inability
to contact the Plaintiffs. Case No. 12-cv-57 (Doc. 103); Case No. 12-cv-52 (Doc. 675). As their claims have
been dismissed, the associated Motions to Withdraw as Counsel are DENIED as moot.
4

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Court is obligated to manage every active case on its docket, including those considered
by some to be the low hanging fruit. (Doc. 692, at pp. 33; 32).
Finally, the Court notes that Plaintiffs’ counsel indicated that they have been
unable to contact “Olivia Wilson, mother of Plaintiff Jonathan Wilson.” (Doc. 674 at pp.
2-3). The Court has received no indication that Jonathan Wilson is a minor or otherwise
legally incompetent. While the Court understands that an adult child may reside at
home where traditional parent/child social roles apply, the law recognizes Jonathan
Wilson as a competent litigant until proven to the contrary. As he is not represented by a
“next friend” representative, the failure to prosecute his claim and the repeated failure to
comply with an Order of this Court fall squarely on his shoulders. Therefore, the
individual claim of Jonathan Wilson is DISMISSED without prejudice to ripen into with
prejudice thirty days after the date of this Order. To avoid the possibility of a
communication error, Plaintiff Wilson may file an affidavit within the thirty day
window explaining why he has failed to prosecute his case and follow Orders of this
Court.
Table 1
Name of Representative

Child/Injured Party

Case Number

Alexander Rhealyn

E.I.

12-cv-52

Brandi Arrowood

J.A.

12-cv-824

Jacquelyn Askins-King

J.A.

14-cv-1248

Paula Cannon

J.C.

14-cv-1248

Caroline Davis

S.D.

14-cv-1248

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Name of Representative

Child/Injured Party

Case Number

Erica Hart

A.H.

12-cv-824

Tina Haynes

J.H.

12-cv-824

Erin Jackson

R.M.

12-cv-824

LaSandra Palmer

J.P.

12-cv-824

Janet Woolfolk

A.W.

12-cv-57

N/A

Jonathan Wilson

12-cv-163

Loida Colon

L.C.

12-cv-57

Plaintiffs previously listed under the “Proof of Use” category
Plaintiffs’ response to the May 15, 2016 Order to Show Cause indicated that
several Plaintiffs did not provide a claim form because they were having difficulty
locating evidence of their usage of Depakote. Thirteen of these individuals failed to
provide any response. Like all of the other Plaintiffs, these thirteen individuals were
warned that “failure to provide a timely response would result in immediate dismissal.”
Accordingly, the Plaintiffs listed in Table 2 are DISMISSED without prejudice.
Table 2
Name of Representative

Child/Injured Party

Case Number

Angela Fetter

G.I.

12-cv-824

Angela Fetter

J.I.

12-cv-824

Dana Littles

J.B.

14-cv-1248

Patricia McKinney-Cole

J.M.

12-cv-824

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Name of Representative

Child/Injured Party

Case Number

Alicia Middleton

A.M.

12-cv-824

Tomeka Nealy

A.N.

12-cv-824

Debbie Oppermann

K.O.

12-cv-824

Elizabeth Scott

M.S.

14-cv-1248

Mandi Truman

L.T.

14-cv-1248

Adria Weaver

M.W.

12-cv-824

Kimberly Wright

Z.W.

14-cv-1248

N/A

Matthew LeMaster

15-cv-472

Danielle Yancer-Lindsey

J.A.

14-cv-1248

Claims Plaintiffs will be moving to dismiss
Plaintiffs indicated, prior to the November 8 deadline, that they would be moving
to dismiss the claims of the individuals listed in Table 3. To date, Plaintiffs have
dismissed the claims of Plaintiffs Misty Williams-Couch individually and as next friend
of her minor child F.J. and Anthony Pate. If Plaintiffs still seek to dismiss the claims of
Shamika Anderson, individually and as next friend of M.G. or Holly Lynn Russell
individually as parent and next friend of D.M., they must file the appropriate dismissal
paperwork on or before December 20, 2016.
Table 3
Name of Representative
Shamika Anderson

Child/Injured Party
M.G.

Case Number
14-cv-425

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Name of Representative

Child/Injured Party

Case Number

N/A

Anthony Pate

12-cv-1091

Holly Lynn Russell

D.M.

12-cv-53

Mary Williams-Couch

F.J.

13-cv-1061

Plaintiffs who filed responses
The remaining Plaintiffs filed responses with the Court before the November 8,
2016 deadline. With one exception, their responses were completely unacceptable. In the
face of a warning that the Court was contemplating dismissal with prejudice, the vast
majority of replies provided were nonresponsive or paltry in detail. Take for example
the responses for Courtney Peace and Patricia Garris-Howard. (Docs. 659; 662). First,
these responses were not prepared by the individual Plaintiffs and instead were crafted
by their attorney. Second, they do nothing to clarify why the Plaintiffs failed to comply
with the December 2015 deadline or even whether a claim form was submitted back in
May of 2016. 5 Given the repeated failures to comply with this Court’s Orders, including
the most recent deficient responses, the claims of Patricia Garris-Howard, individually
and as next friend of T.G.H., and Courtney Peace, individually and as next friend of C.P.
are DISMISSED without prejudice.
The remaining responses, with one exception, are completely inadequate and fail
to satisfy the requirements set forth in the October 29 Order to Show Cause. The
Indeed, the responses appear to imply that counsel failed to verify whether the Plaintiffs submitted the
required forms until November 1, 2016, after the Court’s second Order to Show Cause. Each individual
counsel has a duty to ensure that their clients understand and comply with the Orders of the Court. This is
especially true in the face of an Order to Show Cause. It is unacceptable if an attorney did not follow up to
ascertain whether his or her client had complied with the Court’s previous Order back in May.

5

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responses fall into one of two patterns:

either the document fails to present any

relevant information related to the Order to Show Cause, or the document provides little
more than a skeletal response. 6 The details provided do not allow the Court to make any
meaningful assessment regarding their compliance with this Court’s Order. Plaintiffs
were instructed to explain “in detail” why their claims should not be dismissed, and
instead of heading this instruction, they provided the Court with three or four sentences
of vague explanation. Compare (Doc. 674-1, at p. 11) with (Doc. 674-1, at p. 6) (providing
the minimum level of detail for the Court to assess the Plaintiffs failure to provide the
required forms). Plaintiffs where warned that the Court was contemplating dismissal of
their cases and yet the Plaintiffs submitted inadequate responses. Accordingly, the
Plaintiffs’ claims listed in Table 4 are DISMISSED without prejudice.
Table 4
Name of Representative

Child/Injured Party

Case Number

N/A

Victoria Cook

12-cv-163

Patricia Garris-Howard

T.G.H.

14-cv-1248

Tequila Harrell-Wright

C.H.

12-cv-694

N/A

Jessie Hobson

13-cv-134

N/A

Lindsey James

13-cv-134

Penny Elaine Jaquay

A.J.

13-cv-622

Karen Kelly

S.K.

12-cv-53

6

The majority of the responses in the second category present four basic pieces of information:
(1) Plaintiff took Depakote; (2) Plaintiff gave medical information to the lawyer; (3) the lawyer was not
able to get the records; and (4) the records may not exist anymore. See e.g. (Doc. 674-1).

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Name of Representative

Child/Injured Party

Case Number

Janet Mann

K.P.

13-cv-1312

N/A

Judy Mason

12-cv-163

N/A

Shana Mullenix

15-cv-472

Courtney Peace

C.P.

14-cv-1248

Pinnie Pounds

N.P.

12-cv-824

Thompsalina A. Reed

H.G.

12-cv-57

Susan Roles

J.M.

15-cv-472

James R. White

D.W.

12-cv-57

Melissa A. Wilkinson

J.W.

12-cv-53

Finally, the Court must note two items that do not fit into the above categories.
First, the response by Penny Jaquay was not sworn as required by the Court and is
therefore facially unacceptable. Second, as noted above, the Court received affidavits
from the biological mothers of several adult Plaintiffs without receiving responses from
the actual litigants themselves. All litigants must act on their own behalf unless the
Court receives information that a litigant is a minor or is legally incompetent. 7
IT IS SO ORDERED.
DATED: December 13, 2016

____________________________
NANCY J. ROSENSTENGEL
United States District Judge

7

The Court recognizes that some Plaintiffs have lifelong cognitive impairment. If Plaintiffs believe an
adult requires a legal representative to conduct this litigation, then they must immediately bring such a
request to the Court’s attention. Responses by anyone other than the listed Plaintiff and his or her counsel
will not be recognized by the Court.

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