Burroughs v. Bayer Healthcare Pharmaceuticals, Inc et al

Filing 37

ORDER Regarding CMO 83 Dispute (Filing of Dispositive Motions). Signed by Judge David R. Herndon on 2/7/2017. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
------------------------------------------------------------

X

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

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

-----------------------------------------------------------Judge David R. Herndon

Burroughs v. Bayer Healthcare
Pharmaceuticals, Inc., et al., No. 3:12-cv11454-DRH-PMF

HERNDON, District Judge:
ORDER
A dispute has arisen with regard to Case Management Order No. 83 (“CMO
83”) and the filing of dispositive motions. 1 Paragraph 9 of CMO 83 provides that

Daubert and dispositive motions are to be filed no later than 14 days after the
conclusion of expert discovery. The question before the Court is whether Bayer
will be allowed to file a summary judgment motion in the above captioned action
despite the passing of the 14-day deadline.
Unfortunately, the Court was complicit in setting up this dispute in the
following manner.

On December 21, 2016, at 7:48 AM, Special Master Ellis

forwarded an inquiry from Bayer’s counsel.

The inquiry suggested a lack of

clarity regarding whether Daubert motions and summary judgment motions

1

The parties have presented their arguments to the Court via email.
1

should be filed in this Court or after remand. This judge, in an enormous error
in judgment, when he finally got around to answering the inquiry at 7:59 PM,
failed to review CMO 83 and answered as follows: “Seems to me the sum jgmt
motions could be filed after remand. If they find it appropriate to file Daubert I
should take those.” Although this response should have been conveyed to both
parties (probably by Bayer’s counsel as the custom of those type inquires were
undertaken), it appears the response was conveyed to Bayer’s counsel and it went
no farther.
The relevant provision of CMO 83 provides as follows:

Daubert motions and dispositive motions, if any, shall be filed no
later than 14 days after the conclusion of expert discovery, with
response briefs due 30 days later.

(CMO 83 ¶ 9).

This provision is quite clear in its language and directive.

However, because of the Court’s response and the failure to relay that response to
both parties, CMO 83’s directive became the subject of ambiguity and unintended
consequences. The plaintiff had every reason to believe that if any dispositive
motions would be filed, they would be filed within the timeframe covered by the
above quoted language. The defendant, on the other hand, believed the
“clarification” from the Court for the summary judgment motion it intended to
file, gave it leave to wait until the case was transferred before it was to be filed.
The only appropriate way, in the proper management of this case, for the
Court to resolve this matter is to reset the clock and require the filing of the
dispositive motions, summary judgment or otherwise, in this court in accord with
2

CMO 83. The language in CMO 83 does not lack clarity and there is no reason it
should not be followed.

Therefore, the defendant has 14 days to file any

dispositive motion it wishes to file and once filed, plaintiff has 30 days to respond.
If the defendant does not wish to file a dispositive motion, it shall so advise the
Court no later than 5 days hence.
The transfer of the case, if necessary, is therefore delayed until after the
Court’s ruling on the motion.
IT IS SO ORDERED.
Signed this 7th day of February, 2017.

Digitally signed by Judge
David R. Herndon
Date: 2017.02.07 16:04:43
-06'00'
United States District Judge

3