Kerley v. Bayer Healthcare Pharmaceuticals Inc. et al

Filing 11

ORDER DISMISSING CASE. This matter is dismissed without prejudice for failure to comply with CMO 12's PFS requirements. 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:
Janet Atkins v.
Bayer Healthcare Pharmaceuticals Inc.
Jennifer Boyd, et al. v. Bayer Corp., et al. 1

No. 3:12-cv-11687-DRH-PMF

Polly Brigham, et al. v. Bayer Corp., et al. 2

No. 3:12-cv-11686-DRH-PMF

Elizabeth Celestino v. Bayer Corp., et al.

No. 3:13-cv-10125-DRH-PMF

Teresa Collins, et al. v. Bayer Corp., et al. 3

No. 3:13-cv-10035-DRH-PMF

Kelli Frye v.
Bayer Healthcare Pharmaceuticals Inc.

No. 3:13-cv-10038-DRH-PMF

Kimberly Goodson, et al. v. Bayer Corp., et al. 4

No. 3:13-cv-10036-DRH-PMF

Lucretia Gordon v. Bayer Corp., et al.

No. 3:13-cv-10078-DRH-PMF

Natasha Harris, et al. v. Bayer Corp., et al. 5

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No. 3:13-cv-10172-DRH-PMF

No. 3:12-cv-11688-DRH-PMF

This motion applies only to plaintiffs Murinner Knight, Brandi Martin, Shameka Wall and
Phyllis Williams.
2
This motion applies only to plaintiffs Polly Brigham, Ronda Hill, Leslie Moore and Tarniecha
Queen.
3
This motion applies to all plaintiffs in the Collins case: Teresa Collins, Tameka Dobson,
Jameka Manning, Hazel Prophet, and Joada Williams.
4
This motion applies only to plaintiffs Kesha Calhoun, Monica Day, Kimberly Goodson, and
D.T., a minor, by Peccola Taylor.
5
This motion applies to all plaintiffs in the Harris case: Nikki Deloach, Denita Fitzgerald,
Natasha Harris, Alexis Raiford and Brittany Thomas.

Jamella Hollis v.
Bayer Healthcare Pharmaceuticals Inc.

No. 3:13-cv-10039-DRH-PMF

Kimya Johnson v.
Bayer Healthcare Pharmaceuticals Inc.

No. 3:13-cv-10151-DRH-PMF

Jill Kerley v.
Bayer Healthcare Pharmaceuticals Inc.

No. 3:13-cv-10152-DRH-PMF

Daisy Luna, et al. v. Bayer Corp., et al. 6

No. 3:13-cv-10028-DRH-PMF

Maggie Lynch v.
Bayer Healthcare Pharmaceuticals Inc.

No. 3:13-cv-10040-DRH-PMF

Stephanie Madrigal, et al. v. Bayer Corp., et al. 7

No. 3:13-cv-10025-DRH-PMF

Caroline Ojeda, et al. v. Bayer Corp., et al. 8

No. 3:13-cv-10031-DRH-PMF

Jamie Parish, et al. v. Bayer Corp., et al. 9

No. 3:12-cv-11641-DRH-PMF

Shantel Roberts, et al v. Bayer Corp., et al. 10

No. 3:13-cv-10030-DRH-PMF

Patricia Salazar, et al v. Bayer Corp., et al. 11

No. 3:12-cv-11640-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”) 12 for an order of dismissal, without

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This motion applies only to plaintiffs Nicole Smith and Kateria Taylor
This motion applies only to plaintiffs Malkit Kaur, Stephanie Madrigal, Deanna Minter and
Elaine Rocha.
8
This motion applies to all plaintiffs in the Ojeda case: Maria Madrid, Nancy McNeal, Caroline
Ojeda, Elizabeth Williams and Markitta Witcher.
9
This motion applies to all plaintiffs in the Parish case: Carolyn Boggan, Tiffany Brown,
Yvonne Carter, Maria Garcia and Jamie Parish.
10
This motion applies to all plaintiffs in the Roberts case: Sonya Johns, Ann May, Hazel
McCain, Shantel Roberts and Nacole Scale.
11
This motion applies only to plaintiffs Porcia Crafter, Patricia Salazar, Desiree Smith and
Natoya Smith.
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prejudice, of the plaintiffs’ claims in the above captioned cases for failure to
comply with Plaintiff Fact Sheet (“PFS”) obligations. 13
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 in June or July 2013 (See e.g., Janet Atkins v. Bayer
Healthcare Pharmaceuticals Inc. No. 3:13-cv-10172-DRH-PMF Doc. 10-1). 14 Per
Section E of CMO 12, Notice of Overdue Discovery was sent on August 29, 2013
(See e.g., Janet Atkins v. Bayer Healthcare Pharmaceuticals Inc. No. 3:13-cv10172-DRH-PMF Doc. 10-2). 15 As of the filing of Bayer’s motion to dismiss, Bayer

12

The parties negotiated and agreed to CMO 12, which expressly provides that the discovery
required of plaintiffs is not objectionable. CMO 12 § A(2).
13

Bayer’s motion also sought dismissal of Tomekia Bush v. Bayer Healthcare Pharmaceuticals
Inc.No. 3:12-cv-11607-DRH-PMF, Raquita Logan v. Bayer Healthcare Pharmaceuticals Inc.
No. 3:12-cv-11615-DRH-PMF, Marlisia Mitchell v. Bayer Healthcare Pharmaceuticals Inc. No.
3:12-cv-11612-DRH-PMF, Evelyn Sims v. Bayer Healthcare Pharmaceuticals Inc. No. 3:12-cv11613-DRH-PMF, and Teresa Wilkerson v. Bayer Healthcare Pharmaceuticals Inc. No. 3:12-cv11610-DRH-PMF. However, the motion was subsequently withdrawn as to these plaintiffs.
14

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 Janet Atkins v. Bayer Healthcare
Pharmaceuticals Inc. No. 3:13-cv-10172-DRH-PMF (Docs. 10, 10.1, 10.2).
15

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.

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still had not received completed PFS materials from the plaintiffs in the abovecaptioned matters and the plaintiffs’ PFS materials were more than three 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.
To date, only one of the above captioned plaintiffs has filed a response to
the motion to dismiss. Plaintiff Gordon (Lucretia Gordon v. Bayer Corp., et al.
No. 3:13-cv-10078-DRH-PMF) filed a responsive pleading on November 20, 2013
asserting that she has complied with CMO 12 (Doc. 10). The defendants’ replied
acknowledging receipt of plaintiff Gordon’s PFS but asserting the submitted PFS
is grossly inadequate (Doc. 11). The defendants’ note numerous deficiencies in
plaintiff’s Gordon’s PFS (Doc. 11). Plaintiff Gordon does not contest the
defendants’ representations. Accordingly, the Court finds that plaintiff Gordon
has not submitted a substantially complete PFS and is not in compliance with the
requirements of CMO 12.
None of the remaining plaintiffs has filed a response. Accordingly, the Court
finds that these plaintiffs have failed to comply with their PFS obligations under
CMO 12.

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Therefore, 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
17:59:11 -06'00'
Chief Judge
United States District Court

Date: February 3, 2014

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