Carrion et al v. Bayer Corporation et al

Filing 7

ORDER, GRANTING 6 MOTION to Dismiss. The claims of Plaintiffs Andria Bowman and Elizabeth Carrion are DISMISSED without prejudice for failure to comply with Plaintiff Fact Sheet Requirements. Andria Bowman and Elizabeth Carrion terminated.. Signed by Chief Judge David R. Herndon on 3/11/2013. (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:
Ashley Behnke v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:12-cv-11070-DRH-PMF

Andrea Branch Miller v. Bayer Corp., et al.

No. 3:12-cv-11096-DRH-PMF

Kimberly Busan, et al. v. Bayer Corp., et al.1

No. 3:12-cv-10690-DRH-PMF

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

No. 3:12-cv-10788-DRH-PMF

Elizabeth Carrion, et al. v. Bayer Corp., et al.2

No. 3:12-cv-10704-DRH-PMF

Teffeny Collier-Wright v. Bayer Corp., et al.

No. 3:12-cv-20105-DRH-PMF

Danielle Davis v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:12-cv-11137-DRH-PMF

April Dugger, et al. v.
Bayer HealthCare Pharmaceuticals Inc., et al. 3

No. 3:11-cv-12436-DRH-PMF

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

No. 3:12-cv-11161-DRH-PMF

Frederica Gallagher, et al. v. Bayer Corp., et al.4 No. 3:12-cv-10701-DRH-PMF
1

This order applies only to plaintiffs Pamela McClellan and Lindsay Perrotta.

2

This order applies only to plaintiffs Andria Bowman and Elizabeth Carrion.

3

This order applies only to plaintiff April Dugger.

4

This order applies only to plaintiffs Rita Bhojani, Lisa Reed, and Rachael Young.

Heather Glass v. Bayer Corp., et al.

No. 3:12-cv-10991-DRH-PMF

Jordon Henderson, et al. v. Bayer Corp., et al.5

No. 3:12-cv-10700-DRH-PMF

Erin Knowles v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:12-cv-10039-DRH-PMF

Paula Krutilek, et al. Bayer Corp., et al. 6

No. 3:12-cv-10698-DRH-PMF

Jelisa Laurent v. Bayer Corp., et al.

No. 3:12-cv-10465-DRH-PMF

Theira Lopez v. Bayer Corp., et al.

No. 3:10-cv-12840-DRH-PMF

Melodie Mixon v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:12-cv-10581-DRH-PMF

Alexandrea Noack v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:12-cv-11160-DRH-PMF

Kelli Plummer v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:12-cv-11283-DRH-PMF

Gabrielle Qualman v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:12-cv-10040-DRH-PMF

Stephanie Schwartz v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:12-cv-10706-DRH-PMF

Elizabeth Stillion, et al. v. Bayer Corp., et al.7

No. 3:12-cv-10855-DRH-PMF

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

No. 3:12-cv-10119-DRH-PMF

Jennifer Sykes v. Bayer Corp., et al.

No. 3:12-cv-10715-DRH-PMF

Natasha Thompson v.
Bayer HealthCare Pharmaceuticals Inc., et al.

No. 3:12-cv-10789-DRH-PMF

5

This order applies only to plaintiffs Mychelle Dixson, Courtney Green and Jordon Henderson.

6

This order applies only to plaintiffs Paula Krutilek, Gaynell Walters, and Michelle Wright.

7

This order applies only to plaintiff Monica McClary.

2

Candace and Michael Trahan
v. Bayer Corp., et al.

No. 3:12-cv-10847-DRH-PMF

Adrianne Watson v. Bayer Corp., et al.

No. 3:12-cv-10838-DRH-PMF

Rachel Weitzman v. Bayer Corp., et al.

No. 3:12-cv-10841-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”) 8 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.”
Accordingly, the plaintiffs in the above-captioned matters were to have
served completed PFSs on or before November 18, 2012 (See e.g., Ashley
Behnke v. Bayer HealthCare Pharmaceuticals Inc., et al No. 3:12-cv-11070-

8

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

3

DRH-PMF Doc. 8-1).9 Per Section E of CMO 12, Notice of Overdue Discovery was
sent on or before December 14, 2012 (See e.g., Ashley Behnke v. Bayer
HealthCare Pharmaceuticals Inc., et al No. 3:12-cv-11070-DRH-PMF Doc. 8-2).10
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 and
the plaintiffs’ PFS materials were more than two 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 February 8, 2013, 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.11

9

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 Ashley Behnke v. Bayer HealthCare
Pharmaceuticals Inc., et al No. 3:12-cv-11070-DRH-PMF (Docs. 8, 8.1, 8.2).

10

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.
11

Responses to Bayer’s motion to dismiss were due 14 days from February 8, 2013 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 plaintiffs in the above captioned member actions has
filed a response.12

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:

David R. Herndon
2013.03.11
14:57:23 -05'00'
Chief Judge
United States District Court

Date: March 11, 2013

12

In Elizabeth Stillion, et al. v. Bayer Corp., et al. No. 3:12-cv-10855-DRH-PMF (motion
applicable to plaintiff Monica McClary only), counsel filed a motion to withdraw as counsel of
record for plaintiff Monica McClary (Doc. 9) (citing a long-standing inability to locate and
communicate with plaintiff Monica McClary). In a separate order, the Court is denying counsel’s
motion to withdraw as counsel of record.

5