Milligan et al v. Bayer Corporation et al

Filing 23

ORDER DISMISSING CASE with prejudice: The Court GRANTS the motion to dismiss with prejudice plaintiff Milligan for failure to comply with CMO 79. Further, as all other plaintiffs were previously dismissed with prejudice, this matter closes the case. The Court DIRECTS the Clerk to enter judgment accordingly. Signed by Judge David R. Herndon on 7/15/2016. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
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X

IN RE YASMIN AND YAZ (DROSPIRENONE)
MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION

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

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Milligan et al v. Bayer Pharmaceuticals
Corporation et al. No. 3:12-cv-10699-DRHPMF 1

ORDER GRANTING MOTION TO DISMISS UNDER CMO 79
HERNDON, District Judge:
BACKGROUND
This matter is before the Court on the pending motion to dismiss with
prejudice for failure to comply with Section III CMO 79 as to plaintiff Jamie
Milligan (Doc. 14). Plaintiff responded in opposition (Doc. 15). Plaintiff does not
contest that she is not in compliance with Section III of CMO 79. Instead, she
argues that Section III of CMO 79 never applied to her because her case was
subject to only Section II of CMO 79. On February 1, 2016, Bayer filed a reply in
opposition setting forth the reasons plaintiff’s case was subject to the
requirements of Section III of CMO 79 (Doc. 17).

1

This order applies to plaintiff Jamie Milligan only.

On May 17, 2016, plaintiff’s counsel filed a motion to withdraw as her
attorney of record (Doc. 21). The Court granted the motion to withdraw on May
31, 2016 (Doc. 22). In the order granting leave to withdraw, the Court provided
the plaintiff with the following extensions and warnings:
(1) Plaintiff was directed that she or her new counsel must file a supplementary
entry of appearance on or before June 21, 2016. The Court warned plaintiff
that failure to comply with this directive could result in dismissal for failure
to prosecute.
(2) The Court reminded plaintiff that a motion to dismiss with prejudice was
pending. The Court allowed plaintiff or her new counsel an extension, until
Monday, June 27, 2016, to file any additional briefing in relation to the
pending motion. Further, the Court stated it would refrain on ruling on the
pending motion until June 28, 2016, and reminded the plaintiff that the
pending motion could result in her action being dismissed with prejudice.
To date, the plaintiff has not entered a supplementary entry of appearance or filed
any other briefing in relation to the pending motion to dismiss.
DISCUSSION
A. Case Management Order Number 79
In August 2015, Bayer and a committee of plaintiffs’ counsel appointed by
this Court in cooperation with the state court judges in the Pennsylvania, New
Jersey and California coordinated proceedings negotiated a settlement agreement

to resolve claims involving alleged arterial thromboembolism (“ATE”) injuries. On
August 3, 2016, the Court entered Case Management Order 76 (“CMO 76”), the
ATE Settlement Implementation Order (MDL 2100 Doc. 3786).
That same day, the Court entered CMO 79, the Non-ATE Case Resolution
CMO. CMO 79 applies to cases, including the above captioned case, that are not
eligible to participate in the ATE settlement. CMO 79 creates two separate tracks
for cases subject to its provisions: (1) settlement negotiations on a fixed schedule
under Section II of the CMO for venous thromboembolism (“VTE”) cases in which

both parties agree that further negotiations would be productive, and (2) retention
and discovery obligations under Section III of the CMO for all other cases, i.e.,
VTE cases in which there is not an agreement that further negotiations would be
productive and cases alleging injuries other than a VTE or an ATE.
Under Section II of CMO 79, any plaintiff “who believes additional efforts to
settle a particular VTE case may be productive” had 60 days to notify Bayer, after
which Bayer had 30 days “to respond with its view about whether additional
settlement efforts would be productive.” CMO 79 ¶ II.2. Section II’s further
requirements regarding negotiations apply only in a “case in which the parties

both agree that additional settlement efforts would be productive.” Id. ¶ II.3
(emphasis added).
If the parties are not in agreement, then the case is subject to the
requirements of Section III of CMO 79. Pursuant to Section III.2 of CMO 79, Bayer
had 50 days to identify cases it believed were subject to the requirements of

Section III of the CMO. Section III.2 also instructed any plaintiffs who believe they
should not have to comply with Section III to meet and confer with defendants
and, if unable to reach an agreement, submit disputes to the Special Master
within 21 days. Sections III.3 and III.4 of CMO 79 then gave plaintiffs 120 days
from the date of the order—i.e., until December 1, 2015—to comply with certain
substantive requirements, such as sending preservation notices and producing
certain documents and limited expert reports. Section III.5 of CMO 79 provides
that plaintiffs who do not comply with their obligations under Section III of the
CMO will be subject to a motion to dismiss with prejudice.
B. Application in the Instant Case
In the instant case, Bayer filed a motion to dismiss with prejudice, in
accord with Paragraph III of CMO 79 on December 15, 2015. The motion
contends (1) this case was identified as a case subject to the requirements of
Section III; (2) the plaintiff did not dispute this classification; and (3) the plaintiff
failed to comply with the retention and discovery obligations of Paragraph III.
The plaintiff does not contest that she is not in compliance with Paragraph
III of CMO 79. Instead, she contends that Paragraph III of CMO 79 never applied
to her. Plaintiff’s argument is premised on a misinterpretation of CMO 79. As
previously noted, Section II’s further requirements regarding negotiations apply
only in a “case in which the parties both agree that additional settlement efforts
would be productive.” CMO 79 ¶ II.3 (emphasis added). In the instant case, Bayer
did not agree (Doc. 17-1). Accordingly, the case was subject to the requirements of

Section III of CMO 79. Additionally, the plaintiff received notification regarding
her cases Section III classification but failed to take any action with regard to this
notice (Doc. 17-2).
In summary, the record reflects the parties did not agree that further
settlement negotiations would be productive (and Bayer timely informed the
plaintiff of its disagreement). Accordingly, the plaintiff was subject to the
provisions of Section III of CMO 79 and was not subject to the negotiation
provisions of Section II. Additionally, Bayer notified the plaintiff that her case was
subject to the requirements of Section III. If the plaintiff objected to this
categorization, she should have submitted the matter to Special Master Randi
Ellis for resolution. Thus, the Court rejects the contention that the plaintiff was
not required to comply with Section III of CMO 79.
There is no dispute that the plaintiff failed to comply with her obligations
under Section III of CMO 79. Section III.5 of CMO 79 provides that any plaintiff
failing to timely comply will be subject to a motion to dismiss with prejudice. In
light of the plaintiff's failure to comply, and lack of good cause for noncompliance,
the motion to dismiss with prejudice is GRANTED.
The claims of the above captioned plaintiff are DISMISSED WITH

PREJUDICE. Further, as all other plaintiffs were previously dismissed with
prejudice (Doc. 10, 13 18), this matter closes the case and the Court DIRECTS
the Clerk to enter judgment.
IT IS SO ORDERED.
Signed this 15th day of July, 2016.

Digitally signed by Judge
David R. Herndon
Date: 2016.07.15
13:50:06 -05'00'
United States District Judge