Agosto et al v. Bayer Healthcare Pharmaceuticals, Inc.

Filing 10

ORDER DISMISSING CASE, GRANTING 8 MOTION for Order toDismiss With Prejudice filed by Bayer Healthcare Pharmaceuticals, Inc. The Court adopts the Special Master's Report and Recommendation. The claims of ALL plaintiffs are DISMISSED WITH PREJUDICE for failure to comply with CMO 60. FURTHER, the Court directs the Clerk of the Court to enter judgment reflecting the same. Signed by Chief Judge David R. Herndon on 5/15/2014. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
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X

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

3:09-md-02100-DRH-PMF

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Judge David R. Herndon

MDL No. 2100

This Document Relates to:

Maya Agosto, et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:13-cv10472-DRH-PMF 1
Brittany Aguirre, et al. v. Bayer
HealthCare Pharmaceuticals Inc., et al.
No. 3:13-cv-10473-DRH-PMF 2
Lois Aubin, et al. v. Bayer Corporation, et
al.3 No. 3:13-cv-10490-DRH-PMF 3
Michele Bailey, et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:13-cv10478-DRH-PMF 4
Amy Bell, et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:13-cv10471-DRH-PMF 5

1

This order applies to all plaintiffs in the Agosto case: Maya Agosto, Andrea Anderson-Cox Chelsie
Andrew, Angela Ballard, and Sedelia Beecher.
2
This order applies only to plaintiffs Brittany Aguirre, Khristian Barnhart, Amy Feeken, and
Elizabeth Folgers.
3
This order applies to only plaintiffs Lois Aubin, Michelle Ball, and Courtney Burnett.
4
This order applies to all plaintiffs in the Bailey case: Michele Bailey, Barbara Collins, Donna
Collins, Brittney Duplantis, and Susan Farrell.
5
This order applies to all plaintiffs in the Bell case: Amy Bell, Tiffany Brimhall, Chloe
Cooper, Tyesha Cooper, and Samantha Dacey.

Chrissy Brown, et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:13-cv10413-DRH-PMF 6
Elizabeth Bunning, et al. v. Bayer Pharma
AG, et al. No. 3:12-cv-11227-DRH-PMF 7
Kiara Callahan, et al. v. Bayer
Corporation, et al. No. 3:13-cv-10493-DRHPMF 8
Patricia Carson, et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:13-cv10453-DRH-PMF 9
Sharell Christensen, et al. v. Bayer
HealthCare Pharmaceuticals Inc., et al. No.
3:13-cv-10438-DRH-PMF 10
Veronica Delgado, et al. v. Bayer
HealthCare Pharmaceuticals Inc., et al.
No. 3:13-cv-10470-DRH-PMF 11
Alex Draisey, et al. v. Bayer Corporation,
et al. No. 3:13-cv-10495-DRH-PMF 12
Jolene Eddy, et al. v. Bayer Corporation,
et al. No. 3:13-cv-10302-DRH-PMF 13
Tanya Etie, et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:11-cv10423-DRH-PMF 14

6

This Order applies to Plaintiff Sadie Haas Only.
This order applies to only plaintiff Nicole Rimmel.
8
This order applies to only plaintiffs Chelsea Carroll and Jennifer Dittberner.
9
This order applies to only plaintiffs Melissa Mateyunas and Julie Nelson.
10
This order applies to only plaintiff Sharell Christensen.
11
This order applies to all plaintiffs in the Delgado case: Veronica Delgado, Tiffany Diehl, Zina
Feliciano, Shakendra Gaskins, and Kathryn Gatti.
12
This order applies to only plaintiffs Alex Draisey, Mary Dugan, and Claudia Finales.
13
This order applies to only plaintiff Amy Jennings.
14
This order applies to only Mary Theresa Massucci.
7

ORDER REGARDING MOTION TO DISMISS WITH PREJUDICE
HERNDON, Chief Judge:
On March 16, 2013, Bayer filed a motion seeking with prejudice dismissal,
of the above captioned plaintiffs’ claims. 15 The motion seeks dismissal, pursuant
to Case Management Order 60 (“CMO 60”), for failure to submit any Claim
Package Materials. 16
Pursuant to the Court’s local rules, the plaintiffs had 30 days to file a
responsive pleading. None of the above captioned plaintiffs filed a responsive
pleading. At the expiration of the responsive pleading deadline, as is required
under CMO 60, the motion was considered by Special Master Stephen
Saltzburg. 17 On April 28, 2014, Special Master’s Saltzburg’s report and
recommendation relating to all but one of the above captioned cases was

15

On March 16, 2014, Bayer filed a motion to dismiss with prejudice seeking dismissal of the
claims of specified plaintiffs in 20 member actions. The motion to dismiss has been withdrawn as
to the following: Kristie Cavanaugh, et al. v. Bayer HealthCare Pharmaceuticals Inc., et al. No.
3:13-cv-10455-DRH-PMF. Therefore, this case is not addressed in this order. In addition, the
plaintiffs in the following member actions were granted a responsive pleading extensions:
Elizabeth Carrion, et al. v. Bayer Corporation, et al. No. 3:12-cv-10704-DRH-PMF; Margaret
Colson, et al. v. Bayer Corporation, et al. No. 3:12-cv-11434-DRH-PMF; Elizabeth Barns, et al. v.
Bayer Corporation, et al. No. 3:13-cv-10371-DRH-PMF; Sophia Darlington, et al. v. Bayer
Corporation, et al. No. 3:13-cv-10372-DRH-PMF; and Christina Brown, et al. v. Bayer
Corporation, et al. No. 3:10-cv-11539-DRH-PMF. Accordingly, as to these five cases, the motion is
not ripe for consideration. The motion to dismiss, as it relates to these five cases, will be
addressed in a separate order.
16
Pursuant to the “Settlement Agreement,” Exhibit A to CMO 60, plaintiffs enrolled in the
Gallbladder Resolution Program are required to submit to the Claims Administrator all the Claim
Package Materials identified in Section 3.03(a) of the Settlement Agreement. Section 3.01 of the
Settlement Agreement fixed November 18, 2013 as the deadline for submission of a complete
Claims Package. The subject motion asserts that the plaintiffs have failed to comply with this
requirement.
17
Section VIII of CMO 60 “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” (Doc. 2739 p. 8).

docketed. The following day, on April 29, 2014, Special Master Saltzburg’s report
and recommendation relating to the remaining member action (Chrissy Brown, et
al. v. Bayer HealthCare Pharmaceuticals Inc., et al. No. 3:13-cv-10413-DRHPMF) (plaintiff Sadie Haas only) was docketed. In each case, Special Master
Saltzburg found that the subject plaintiffs failed to comply with the requirements
of CMO 60 and recommended that the subject plaintiffs’ claims be dismissed with
prejudice in accord with the requirements of CMO 60.
In each case, the parties were given 14 days to respond or object to Special
Master Saltzburg’s report and recommendation. The 14 day deadline for
responding or objecting to the Special Master’s report has expired. None of the
above captioned plaintiffs have responded or objected.
Upon consideration of Bayer’s motion to dismiss, the Special Master’s
reports, and the requirements of CMO 60, the Court finds that all but one of the
subject plaintiffs have failed to comply with CMO 60. The exception is plaintiff
Mary Theresa Massucci in member action Tanya Etie, et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:11-cv-10423-DRH-PMF. Plaintiff Massucci’s
claims were dismissed without prejudice pursuant to a stipulation of dismissal
filed by the parties in August 2011 (Doc. 8). The Court will not now dismiss
plaintiff Massucci’s claims with prejudice for failure to comply with an order
entered in March 2013 (after the parties stipulated to the dismissal of her claims).
Accordingly, as to plaintiff Mary Theresa Massucci in member action

Tanya Etie, et al. v. Bayer HealthCare Pharmaceuticals Inc., et al. No.
3:11-cv-10423-DRH-PMF, the motion to dismiss is DENIED.
With regard to plaintiff Mary Theresa Massucci, should counsel for either
party demonstrate that regardless of her status as a dismissed plaintiff, Ms.
Massucci was provided with a gallbladder settlement package in order to supply
the information needed and, therefore, given the opportunity to participate but
failed to do so, the Court will reconsider the denial herein.

However, such

information and motion to reconsider must be filed in accordance with the rules
governing either Rule 59 or 60, but the Court shall consider such evidence new
evidence.
As to the remaining plaintiffs, the Court adopts Special Master Saltzburg’s
reports. The subject plaintiffs’ claims are therefore DISMISSED

WITH

PREJUDICE for failure to comply with the requirements of CMO 60.
Specifically, the Court ORDERS as follows:
1. Maya Agosto, et al. v. Bayer HealthCare Pharmaceuticals Inc., et al.
No. 3:13-cv-10472-DRH-PMF
The claims of ALL plaintiffs in the Agosto case (Maya Agosto, Andrea
Anderson-Cox Chelsie Andrew, Angela Ballard, and Sedelia Beecher) are
DISMISSED WITH PREJUDICE.
FURTHER, the Court directs the Clerk of the Court to enter judgment
reflecting the same.

2. Brittany Aguirre, et al. v. Bayer HealthCare Pharmaceuticals Inc., et
al. No. 3:13-cv-10473-DRH-PMF
The claims of plaintiffs Brittany Aguirre, Khristian Barnhart, Amy Feeken,
and Elizabeth Folgers are DISMISSED WITH PREJUDICE.
3. Lois Aubin, et al. v. Bayer Corporation, et al.3 No. 3:13-cv-10490DRH-PMF
The claims of plaintiffs Lois Aubin, Michelle Ball, and Courtney Burnett are
DISMISSED WITH PREJUDICE.
4. Michele Bailey, et al. v. Bayer HealthCare Pharmaceuticals Inc., et
al. No. 3:13-cv-10478-DRH-PMF
The claims of ALL plaintiffs in the Bailey case (Michele Bailey, Barbara
Collins, Donna Collins, Brittney Duplantis, and Susan Farrell) are DISMISSED
WITH PREJUDICE.
FURTHER, the Court directs the Clerk of the Court to enter judgment
reflecting the same.
5. Amy Bell, et al. v. Bayer HealthCare Pharmaceuticals Inc., et al. No.
3:13-cv-10471-DRH-PMF
The claims of ALL plaintiffs in the Bell case (Amy Bell, Tiffany Brimhall,
Chloe Cooper, Tyesha Cooper, and Samantha Dacey) are DISMISSED WITH
PREJUDICE.
FURTHER, the Court directs the Clerk of the Court to enter judgment
reflecting the same.

6. Chrissy Brown, et al. v. Bayer HealthCare Pharmaceuticals Inc., et
al. No. 3:13-cv-10413-DRH-PMF
The claims of plaintiff Sadie Haas are DISMISSED WITH PREJUDICE.
7. Elizabeth Bunning, et al. v. Bayer Pharma AG, et al. No. 3:12-cv11227-DRH-PMF
The claims of plaintiff Nicole Rimmel are DISMISSED WITH PREJUDICE.
8. Kiara Callahan, et al. v. Bayer Corporation, et al. No. 3:13-cv-10493DRH-PMF
The claims of plaintiffs Chelsea Carroll and Jennifer Dittberner are
DISMISSED WITH PREJUDICE.
9. Patricia Carson, et al. v. Bayer HealthCare Pharmaceuticals Inc., et
al. No. 3:13-cv-10453-DRH-PMF
The claims of plaintiffs Melissa Mateyunas and Julie Nelson are
DISMISSED WITH PREJUDICE.
10.
Sharell Christensen, et al. v. Bayer HealthCare
Pharmaceuticals Inc., et al. No. 3:13-cv-10438-DRH-PMF
The claims of plaintiff Sharell Christensen are DISMISSED WITH
PREJUDICE.
11.
Veronica Delgado, et al. v. Bayer HealthCare Pharmaceuticals
Inc., et al. No. 3:13-cv-10470-DRH-PMF
The claims of ALL plaintiffs in the Delgado case (Veronica Delgado, Tiffany
Diehl, Zina Feliciano, Shakendra Gaskins, and Kathryn Gatti) are DISMISSED
WITH PREJUDICE.

FURTHER, the Court directs the Clerk of the Court to enter judgment
reflecting the same.
12.
Alex Draisey, et al. v. Bayer Corporation, et al. No. 3:13-cv10495-DRH-PMF
The claims of plaintiffs Alex Draisey, Mary Dugan, and Claudia Finales are
DISMISSED WITH PREJUDICE.
13.
Jolene Eddy, et al. v. Bayer Corporation, et al. No. 3:13-cv10302-DRH-PMF
The claims of plaintiff Amy Jennings are DISMISSED WITH PREJUDICE.

14.
Tanya Etie, et al. v. Bayer HealthCare Pharmaceuticals Inc., et
al. No. 3:11-cv-10423-DRH-PMF
The motion to dismiss the claims of Mary Theresa Massucci is DENIED.
SO ORDERED:

Digitally signed by
David R. Herndon
Date: 2014.05.15
14:50:12 -05'00'
Chief Judge
United States District Court

Date: May 14, 2014