Warren v. Bayer Corporation et al

Filing 10

ORDER DISMISSING CASE, GRANTING 9 MOTION for Order to - Motion to Dismiss Without Prejudice -- Failure to Comply With CMO 12 filed by Bayer Healthcare Pharmaceuticals Inc.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:
Dylan Tays v.
Bayer Healthcare Pharmaceuticals Inc.

No. 3:11-cv-12560-DRH-PMF

Katie Warren v. Bayer Corp., et al.

No. 3:13-cv-10130-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”) 1 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

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

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 May 27, 2013. Per Section E of CMO 12,
Notice of Overdue Discovery was sent on July 12, 2013. 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 five 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
defendants and defendants received a completed PFS, and attaching appropriate
documentation of receipt or an opposition to defendant’s motion.
On November 26, 2013, plaintiff Dylan Tays filed a response certifying
compliance with CMO 12 and attaching a delivery receipt. The defendants have
not responded or objected to plaintiff Dylan Tays’ representations.
To date, plaintiff Katie Warren has not filed a response.
Accordingly, THE COURT ORDERS AS FOLLOWS:
As to plaintiff Dylan Tays, the motion to dismiss is DENIED.
As to plaintiff Katie Warren, the motion to dismiss is GRANTED. The
claims of plaintiff Katie Warren are hereby dismissed without prejudice.
FURTHER, The Court reminds plaintiff Katie Warren that, pursuant to
CMO 12 Section E, unless she serves the defendants with a COMPLETED PFS

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or moves 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
18:02:12 -06'00'

Chief Judge
United States District Court

Date: February 3, 2014

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