Boettcher et al v. Bayer Corporation et al

Filing 4

CASE MANAGEMENT ORDER NUMBER 60, Settlement Agreement and Deadlines - Gallbladder Injuries. Signed by Chief Judge David R. Herndon on 3/15/2013. (Attachments: # 1 Exhibit A (Signed Settlement Agreement), # 2 Exhibit B (Notice of Intent to Opt O ut Form - Appendix B-1), # 3 Exhibit C (Notice of Intent to Opt In Form - Appendix B-2), # 4 Exhibit D (Declaration - Appendix G))(dsw)NOTICE REGARDING EXHIBITS B AND C: Revised more "user-friendly" versions of Exhibits B and C are avai lable in the Master Docket (09-md-2100 Doc. 2762) and on the Court's Website. Plaintiffs may utilize either the original versions (attached to this order) or the revised versions available in the Master Docket (09-md-2100 Doc. 2762) (and on the Courts website).

UNITED STATES DISTRICT COURT
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:
ALL CASES
ORDER # 60
CASE MANAGEMENT
(Settlement Agreement and Deadlines – Gallbladder Injuries)
This Court is advised that Bayer HealthCare Pharmaceuticals Inc. (“BHCP”) and a
committee of plaintiffs’ counsel appointed by this Court in cooperation with the state court
Judges in the Pennsylvania, New Jersey and California coordinated proceedings (“Negotiating
Plaintiffs Counsel” or “NPC”) have negotiated a Settlement Agreement (“Agreement”) to
resolve claims involving gallbladder injuries. The Agreement is attached as Exhibit A to this
Order. The Agreement establishes a program (the “Gallbladder Resolution Program” or
“Program”) for the settlement of cases filed in this MDL No. 2100, cases pending in other
federal courts but not yet transferred into MDL No. 2100 (“Other Federal Court Cases”), and
cases filed in the California Coordinated Proceedings, the New Jersey Coordinated Proceedings,
the Philadelphia Court of Common Pleas Coordinated Proceedings as well as any other state
courts (“State Cases”), in which plaintiff(s) alleges gallbladder disease and/or gallbladder
injuries resulting from the use of drospirenone-containing oral contraceptives manufactured by
Bayer or manufactured or marketed by BarrTeva, as defined in the Agreement (“Gallbladder
Plaintiffs”).

I.

AUTHORITY OF COURT TO OVERSEE SETTLEMENT
This Court has authority to preside over and manage various aspects of the Agreement

and the Gallbladder Resolution Program, including, but not limited to, the entry of Orders
establishing time frames for the completion of acts defined in the Agreement. Fed. R. Civ. P.
16(a)(5), (d); In re Vioxx Prods. Liab. Litig., 650 F. Supp. 2d 549 (E.D. La. 2009); In re
Propulsid Prods. Liab. Litig., 2004 WL 305816 (E.D. La. 2004). The instructions herein are to
be construed as the orders of this Court.
II.

MDL CASES
All Gallbladder Plaintiffs with cases pending in MDL No. 2100 (“MDL Gallbladder

Plaintiffs”) that have been filed and served on Defendants as of the “Filing Deadline,” set forth
in this Order, shall be given notice of this Order and of the Agreement executed by BHCP and
the NPC. The Clerk of Court is hereby directed to file this Order in each individual case pending
in this MDL (in addition to filing the Order on the general docket for this MDL applicable to all
cases).
For ease of administration of the Gallbladder Resolution Program and so that no
Gallbladder Plaintiff is inadvertently excluded from the Settlement Program, all MDL
Gallbladder Plaintiffs, other than those alleging a venous or arterial thromboembolism in
addition to a gallbladder injury or disease, are automatically enrolled in, and bound by the
terms of, the Gallbladder Resolution Program unless such Plaintiff submits a “Notice of
Intent to Opt Out Form,” attached as Exhibit B (Appendix B-1) to this Order and available
at http://www.ilsd.uscourts.gov/mdl/mdl2100.aspx, by the “Opt-Out Deadline” set forth in
this Order (and as may be extended as applicable under the terms of the Agreement).
MDL Gallbladder Plaintiffs who do not timely submit a “Notice of Intent to Opt Out
Form” shall submit a complete Claim Package, as detailed in the Agreement, by the Claim
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Package Deadline, extended as may be appropriate to the Cure Deadline, both set forth in
this Order, to be eligible for an award under the Gallbladder Resolution Program.
The claims of MDL Gallbladder Plaintiffs, other than MDL Gallbladder Plaintiffs
alleging a venous or arterial thromboembolism in addition to a gallbladder injury or disease, who
do not submit a “Notice of Intent to Opt Out Form” and who do not timely submit a complete
Claim Package will not be eligible to receive any compensation under the Program and will be
subject to a motion by Defendant for dismissal with prejudice following the Cure Deadline as set
forth in the Agreement.
MDL Gallbladder Plaintiffs who allege venous or arterial thromboembolism in addition
to a gallbladder injury or disease are permitted to enroll in, and be bound by the terms of, the
Gallbladder Resolution Program but these plaintiffs are not automatically enrolled in the
Program and must take affirmative action to participate by submitting a “Notice of Intent to Opt
In Form,” attached as Exhibit C (Appendix B-2) to this Order and available at
http://www.ilsd.uscourts.gov/mdl/mdl2100.aspx, by the “Opt-In Deadline” set forth in this Order
(and extended as applicable under the terms of the Agreement). Under the terms of the
Agreement, by enrolling in the Program, any plaintiff will be required to submit a completed
Claims Package, as detailed in the Agreement, to be eligible for an award under the Gallbladder
Resolution Program, which will include a Release, releasing all claims against the defendants,
including their claims alleging an arterial or venous thromboembolism injury.
III.

OTHER FEDERAL COURT CASES AND STATE CASES
Gallbladder Plaintiffs with claims pending in Other Federal Court Cases (“Other Federal

Court Gallbladder Plaintiffs”), as well as Gallbladder Plaintiffs with claims pending in State
Cases (“State Court Gallbladder Plaintiffs”), are permitted to enroll in, and be bound by the
terms of, the Gallbladder Resolution Program. Other Federal Court Gallbladder Plaintiffs and
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State Court Gallbladder Plaintiffs are not automatically enrolled in the Gallbladder Resolution
Program, but rather must take affirmative action to participate. Other Federal Court Gallbladder
Plaintiffs and State Court Gallbladder Plaintiffs who intend to participate in the Gallbladder
Resolution Program must submit a “Notice of Intent to Opt In Form,” attached as Exhibit C
(Appendix B-2) to this Order and available at http://www.ilsd.uscourts.gov/mdl/mdl2100.aspx,
by the “Opt-In Deadline” set forth in this Order (and extended as applicable under the terms of
the Agreement). Other Federal Court Gallbladder Plaintiffs and State Court Gallbladder
Plaintiffs who submit a “Notice of Intent to Opt In Form” shall submit a complete Claim
Package, as detailed in the Agreement, by the Claim Package Deadline, extended as appropriate
to the Cure Deadline, to be eligible for an award under the Gallbladder Resolution Program.
The claims of Other Federal Court Gallbladder Plaintiffs and State Court Gallbladder
Plaintiffs who submit a “Notice of Intent to Opt In Form,” but who do not timely submit a
complete Claim Package, will not be eligible to receive any compensation under the Program
and will be subject to a motion by Defendant for dismissal with prejudice following the Cure
Deadline as set forth in the Agreement. State Court judges shall retain jurisdiction over State
Cases, and exclusive jurisdiction over the termination of Plaintiff rights to sue Defendants in
those cases.
IV.

SETTLEMENT PROGRAM DEADLINES

March 25, 2013 (by 11:59
p.m. C.T.)
(the “Filing Deadline”)

Date by which claimants must file and serve new cases
alleging a gallbladder injury or gallbladder disease, subject to
the requirements of Sections VI and VII below, in order to be
eligible for participation in the Gallbladder Resolution
Program.

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March 15, 2013 to 11:59 p.m.
C.T. on April 29, 2013
(the “Opt-Out Deadline”)

March 15, 2013 to 11:59 p.m.
C.T. on April 29, 2013
(the “Opt-In Deadline”)

Window of time for individual MDL Gallbladder Plaintiffs
(other than those who allege a venous or arterial
thromboembolism injury) to opt out of the Gallbladder
Resolution Program by submitting the “Notice of Intent to Opt
Out Form.”
A one-time extension of thirty (30) days to the Opt-Out
Deadline may be sought from the Claims Administrator in
accordance with the terms of the Agreement.
Window of time in which MDL Gallbladder Plaintiffs who
also allege a venous or arterial thromboembolism injury, Other
Federal Court Gallbladder Plaintiffs, and State Court
Gallbladder Plaintiffs may elect to participate in the
Gallbladder Resolution Program by submitting the “Notice of
Intent to Opt In Form.”
An extension of thirty (30) days to the Opt-In Deadline may be
sought from the Claims Administrator in accordance with the
terms of the Agreement. In addition to such thirty (30) day
extension for individual plaintiffs seeking such an extension,
the Claims Administrator, in the Claims Administrator’s
discretion, may allow an additional twenty (20) days for
plaintiffs to opt in to the Gallbladder Resolution Program
under the terms of the Agreement.

11:59 p.m. C.T. on the 30th
day following the last day of
the final extension of the Opt
In Deadline for opting into
the Gallbladder Resolution
Program
(the “Effective Date”)
Ninety (90) days from the
Effective Date
(the “Claim Package
Deadline”)
Thirty (30) days after Notice
sent by Claims
Administrator notifying of
Claims Package deficiencies
(the “Cure Deadline”)

Date by which BHCP may exercise its termination right under
the Agreement. If BHCP’s termination right under the
Agreement expires without previously having been exercised,
this date shall become the Effective Date of the Agreement.

Window of time in which Gallbladder Resolution Program
participants may submit Claim Packages seeking an award
under the Gallbladder Resolution Program.

Date by which a Gallbladder Resolution Program participant
must cure deficiencies in her Claims Package. A claimant may
seek an extension of an additional thirty (30) days from the
Claims Administrator in accordance with the terms of the
Agreement.

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V.

FORM SUBMISSION
“Notice of Intent to Opt Out Forms” and “Notice of Intent to Opt In Forms” must be

submitted in one of the following ways:
1.

Online at www.yazofficialsettlement.com, in accordance with instructions
provided therein by the Claims Administrator;
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2.

By email to all of the following:
(a)
(b)
(c)

[e-mail] (Claims Administrator)
[e-mail] (BHCP’s counsel)
[e-mail] (NPC);
-or-

3.

By United States Mail or other carrier, return receipt requested, to all of the
following:

Claims Administrator:

BHCP’s counsel:

NPC:

Yaz Settlement Claims
Administrator
BrownGreer PLC
P.O. Box 85006
Richmond, VA 23285-5006

Jeff Fields
Shook, Hardy & Bacon L.L.P.
2555 Grand Blvd.
Kansas City, MO 64108-2613

Roger C. Denton
Schlichter, Bogard & Denton, LLP
100 South Fourth St., Ste 900
St. Louis, MO 63102

VI.

SERVICE OF PROCESS AND ATTORNEY DECLARATIONS FOR NEW
CASES FILED BETWEEN THE EXECUTION DATE OF THE AGREEMENT
AND THE FILING DEADLINE
For all new cases alleging a gallbladder injury or gallbladder disease filed in this MDL

No. 2100, or filed in any jurisdiction and ultimately transferred or removed to this MDL, and
served on Defendant as set forth below, between March 15, 2013 (the Execution Date of the
Agreement) and 11:59 p.m. on March 25, 2013 (the Filing Deadline), unless such Plaintiff
submits a “Notice of Intent to Opt Out Form” as detailed above, such Complaints must be
accompanied by a declaration, in a form substantially similar to the form attached as Exhibit D

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(Appendix G) to this Order and available at http://www.ilsd.uscourts.gov/mdl/mdl2100.aspx,
from the attorney or attorneys filing the Complaint, affirming that such Plaintiff had signed a
retainer agreement with that attorney or his or her law firm prior to March 15, 2013.
In order to be eligible for participation in the Gallbladder Resolution Program, service
upon BHCP of such new Complaints alleging a gallbladder injury or gallbladder disease filed in
this MDL No. 2100 between March 15, 2013 and the Filing Deadline, or filed in any jurisdiction
between March 15, 2013 and the Filing Deadline and ultimately transferred or removed to this
MDL, must be made on or before the Filing Deadline by one of the following methods:
1. By email to [e-mail]; or
2. By United States Mail or other carrier, post-marked on or before the Notice
Deadline as set forth above, return receipt requested, to the following:
Douglas Beck
Shook, Hardy & Bacon L.L.P.
2555 Grand Blvd.
Kansas City, Missouri 64108-2613
For purposes of participation in the Gallbladder Resolution Program no other service is
necessary, and Plaintiffs need not name, and may not serve, any entity other than BHCP in
accordance with the procedures specified in this Section.
VII.

SERVICE OF COMPLAINTS FILED BEFORE THE EXECUTION DATE OF
THE AGREEMENT BUT NOT SERVED BY THE DATE OF THIS ORDER
So that the parties, and this Court, can have an accurate census of the cases in this

litigation, if a case alleging gallbladder disease and/or gallbladder injury, either alone or in
combination with another injury (unless that injury is an arterial thromboembolism or venous
thromboembolism), has been filed in this Court and has not yet been served on the Defendant
(“Filed But Unserved Cases”), Counsel of Record for that case shall serve the case on BHCP
within ten (10) days of the entry of this Order (by March 25, 2013) in accordance with the
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service procedures set forth above in Section VI. All Filed But Unserved Cases shall be subject
to a motion to dismiss with prejudice for failure to comply with this Order if not timely served,
and will thereupon be dismissed with prejudice unless counsel can demonstrate good reason for
noncompliance with this Order. For cases alleging all other injuries, the existing service of
process procedures specified in CMO 9, as amended, shall apply.
VIII. APPOINTMENT OF SPECIAL MASTER
The Court, by this Order, appoints Professor Stephen Saltzburg as Special Master to hear
motions to dismiss claims that fail to comply with the terms of the Agreement, and to
recommend to this Court rulings on such motions, as specified in the Agreement.

Digitally signed by
David R. Herndon
Date: 2013.03.15
14:27:37 -05'00'

SO ORDERED:

Date: March 15, 2013

Honorable David R. Herndon
Chief Judge, United States District Court

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