Ahendran v. Bayer Healthcare Pharmaceuticals Inc et al

Filing 9

ORDER granting 8 Motion to Dismiss Without Prejudice. This member action is dismissed WITHOUT PREJUDICE for failure to comply with Plaintiff Fact Sheet Requirements. Signed by Chief Judge David R. Herndon on 12/3/2012. (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:
Shivanthi Ahendran v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10573-DRH-PMF

Heather Auxier v. Bayer Corp., et al.

No. 3:12-cv-10530-DRH-PMF

Kirsti Bryson v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10113-DRH-PMF

Jeneen Cox v. Bayer Corp., et al.

No. 3:10-cv-13670-DRH-PMF

Ashley Dawson v. Bayer Corp., et al.

No. 3:12-cv-10527-DRH-PMF

Gina Durfee v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10148-DRH-PMF

Aurora Feagans, et al. v. Bayer Corp., et al. 1

No. 3:12-cv-10705-DRH-PMF

Sarah Gross v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-20092-DRH-PMF

Janet Hunsinger v. Bayer Corp., et al.

No. 3:12-cv-10160-DRH-PMF

Tamika Johnson, et al. v. Bayer Pharma
AG, et al. 2

No. 3:12-cv-10141-DRH-PMF

1
2

This Order applies only to plaintiffs Kimberly Francis and Kayla Phillips.

Bayer’s motion to dismiss initially applied to all plaintiffs: Tamika Johnson,
Anna Lowery, Althea Lynne, Yvonne Smith, and Mary Williams. However, Bayer
subsequently withdrew its motion to dismiss the claims of Tamika Johnson and
Althea Lynn (3:12-10141 Doc. 7). Accordingly, this order of dismissal applies
only to Anna Lowery, Yvonne Smith, and Mary Williams.

Breanna Jurgens, et al. v. Bayer Corp., et al. 3

No. 3:12-cv-10526-DRH-PMF

Susan Lamb, et al. v. Bayer Pharma AG, et al. 4

No. 3:12-cv-10164-DRH-PMF

Shaeleshni Lata v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10014-DRH-PMF

Lee Ann Michaud, et al. v. Bayer
Pharma AG, et al 5.

No. 3:12-cv-10165-DRH-PMF

Jamie Milligan, et al. v. Bayer Corp., et al. 6

No. 3:12-cv-10699-DRH-PMF

Latisha Morrell v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:12-cv-10470-DRH-PMF

Davona Sanders, et al. v. Bayer
Pharma AG, et al. 7

No. 3:12-cv-10163-DRH-PMF

Lakisha Tutton, et al. v. Bayer
Pharma AG, et al. 8

No. 3:12-cv-10133-DRH-PMF

3

This Order applies only to plaintiff Patrycja Wojtas.

4

Bayer’s motion to dismiss initially sought dismissal of plaintiffs Jennifer Baker,
Edwina Cummings-Kimura, Jennifer Kirk, and Kelly Olson. Bayer, however,
subsequently filed a notice withdrawing its motion to dismiss as to plaintiffs
Edwina Cummings-Kimura and Kelly Olson (3:12-cv-10164 Doc. 7). Accordingly,
this Order applies only to plaintiffs Jennifer Baker and Jennifer Kirk.
5

Bayer’s motion to dismiss initially sought dismissal of plaintiffs Robyn Dorn,
Jessica Lockhart, Dawn Martin, Lee Ann Michaud, and Jeanine Wagner. Bayer,
however, subsequently filed a notice withdrawing its motion to dismiss as to
plaintiffs Jessica Lockhart, Lee Ann Michaud, Jeanine Wagner (3:12-10165 Doc.
7). Accordingly, this Order applies only to plaintiffs Robyn Dorn and Dawn
Martin.

6

This Order applies only to plaintiffs Sarahann Davis and Devin Snyder.

7

Bayer’s motion to dismiss initially sought dismissal of plaintiffs Brooke
Anderson, Tracy Gardner, Davona Sanders, Shaunta Thomas, and Jonna
Wagoner. Bayer, however, subsequently filed a notice withdrawing its motion to
dismiss as to plaintiffs Tracy Gardner, Davona Sanders, Shaunta Thomas.
Accordingly, this Order applies only to plaintiffs Brook Anderson and Jonna
Wagoner.
8

Bayer’s motion to dismiss initially sought dismissal of plaintiffs Terran
Anderson, Candace Hinkle, Teresa Rubenacker, Lakisha Tutton, and Rachel
2

BAYER HEALTHCARE PHARMACEUTICALS INC.’S
MOTION TO DISMISS WITHOUT PREJUDICE
This matter is before the Court on the Bayer defendants’ motion, pursuant
to Case Management Order 12 (“CMO 12”) 9 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. 10
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 August 5, 2012. (See e.g., Ahendran No.

Walker. Bayer, however, subsequently filed a notice withdrawing its motion to
dismiss as to plaintiffs Terran Anderson, Candace Hinkle, Lakisha Tutton and
Rachel Walker (3:12-10133 Doc. 7). Accordingly, this Order applies only to
plaintiff Teresa Rubenacker.
9

The Parties negotiated and agreed to CMO 12, which expressly provides that the
discovery required of plaintiffs is not objectionable. CMO 12 § A(2).
10

Bayer also sought dismissal of Amanda Johnson v. Bayer Corp., et al. No.
3:12-cv-10304-DRH-PMF. However, the motion to dismiss as to this member
action has been withdrawn.

3

3:12-cv-10573-DRH-PMF Doc. 8-1). 11

Per Section E of CMO 12, Notice of

Overdue Discovery was sent on or before August 27, 2012. (See e.g., Ahendran
No. 3:12-cv-10573-DRH-PMF Doc. 8-2).12 As of the filing of Bayer’s motion to
dismiss, Bayer still had not received completed PFS materials from the plaintiffs
in the above-captioned 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 26, 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. 13

11

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 Ahendran No. 3:12cv-10573-DRH-PMF Docs. 8, 8.1, 8.2).
12
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.
13
Responses to Bayer’s motion to dismiss were due 14 days from September 26,
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

To date, none of the subject plaintiffs 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
the 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: 2012.12.03
15:28:29 -06'00'
Chief Judge
United States District Court

Date: December 3, 2012

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