Higgins et al v. Bayer Corporation et al

Filing 8

ORDER, granting 7 MOTION for Order to - Motion to Dismiss Without Prejudice - Failure to Comply With CMO 12 -- Plaintiffs Maria Anderson, Lashundra Brown, Ami Bubica, Juanita Higgins Only filed by Bayer Healthcare Pharmaceuticals, Inc. Ami Bubica, Juanita Higgins, Maria Anderson and Lashundra Brown terminated.Signed by Chief Judge David R. Herndon on 2/3/2014. (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:
Paula Bruno, et al. v. Bayer Corp., et al. 1

No. 3:12-cv-11521-DRH-PMF

Kay Cochran v.
Bayer Healthcare Pharmaceuticals Inc., et al.

No. 3:11-cv-12142-DRH-PMF

Brenda Lee Gilley v. Bayer Corp., et al.

No. 3:12-cv-11428-DRH-PMF

Juanita Higgins, et al. v. Bayer Corp., et al. 2

No. 3:12-cv-11511-DRH-PMF

Heather Lewis, et al. v. Bayer Corp., et al. 3

No. 3:12-cv-11548-DRH-PMF

Sarah Sinnott, et al. v. Bayer Corp., et al. 4

No. 3:12-cv-11424-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”) 5 for an order of dismissal, without

1

This motion applies only to plaintiffs Malerie Burns and Carrie Franklin.
This motion applies only to plaintiffs Maria Anderson, Lashundra Brown, Ami Bubica, and
Juanita Higgins.
3
This motion applies to all plaintiffs in the Lewis case: Heather Lewis, Yasenia Moreno,
Barbarana Pieron, Jacqueline Washington, and Michelle Williams.
4
This motion applies only to plaintiffs Shequilla Miles and Amy Nobis.
5
The parties negotiated and agreed to CMO 12, which expressly provides that the discovery
required of plaintiffs is not objectionable. CMO 12 § A(2).
2

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 March or April 2013 (See e.g., Paula Bruno,
et al. v. Bayer Corp., et al No. 3:12-cv-11521-DRH-PMF Doc. 7-1). 6 Per Section
E of CMO 12, Notice of Overdue Discovery was sent on May 14, 2013 (See e.g.,
Paula Bruno, et al. v. Bayer Corp., et al No. 3:12-cv-11521-DRH-PMF Doc. 7-2). 7
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 seven months overdue.
Under Section E of CMO 12, the plaintiffs were given 14 days from the
date of Bayer’s motion to file a response either certifying that they served upon
6

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 Paula Bruno, et al. v. Bayer Corp., et al No. 3:12cv-11521-DRH-PMF (Docs. 7, 7.1, 7.2).
7

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.

2

defendants and defendants received a completed PFS, and attaching appropriate
documentation of receipt or an opposition to defendant’s motion.
To date, none of the plaintiffs in the above captioned member actions 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
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: 2014.02.03
17:55:08 -06'00'
Chief Judge
United States District Court

Date: February 3, 2014

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