Ougle v. Boehringer Ingelheim Pharmaceuticals, Inc., et al

Filing 21

ORDER DEFERRING RULING on 10 MOTION to Intervene MOTION to Substitute Party . The Court DIRECTS Movants to file a notice with theCourt, on or before October 16, 2015, stating whether Movants are asserting Mr. Ougles signature on the release is not authentic. If a question as to the authenticity of Mr. Ougles signature is asserted, the Court will schedule an evidentiary hearing. If Movants inform the Court there is no dispute with regard to the authenticity of Mr. Ougles signature, the Court will enter an order summarily denying Movants motion to substitute or intervene (for the reasons stated in the attached order). Signed by Judge David R. Herndon on 10/8/2015. (dsw)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
______________________________________________________________________________
IN RE PRADAXA
)
MDL No. 2385
(DABIGATRAN ETEXILATE) )
3:12-md-02385-DRH-SCW
PRODUCTS LIABILITY
)
Judge David R. Herndon
LITIGATION
)
______________________________________________________________________________
This Document Relates to:

Anthony Ougle v. Boehringer Ingelheim
Pharmaceuticals, Inc. et al., No. 3:13-cv-60030DRH-SCW

ORDER
HERNDON, District Judge:
INTRODUCTION
This matter is before the Court on the motion to intervene and substitute
party filed by Anthony Ougle’s children (“Movants”) (Doc. 10). 1 Defendant
Boehringer Ingelheim Pharmaceuticals, Inc. (“BIPI”) has responded (Doc. 12) and
Movants have replied (Doc. 16). Also pending is Movants’ motion for hearing (Doc.
11).
BACKGROUND
In 2013, plaintiff Anthony Ougle, Sr., filed a Complaint in the Eastern
District of Louisiana alleging an episode of internal bleeding due to Pradaxa (Doc.
1). On August 14, 2013, the case was transferred to this MDL (Doc. 1).

1

Movants indicate plaintiff is incorrectly identified in the caption and previous pleadings as
Anthony Ougle and that the correct spelling is Ougel. At this time, the Court references plaintiff
according to the spelling of his name as filed in his complaint.

Page 1 of 10

On May 28, 2014, the Court announced a Settlement Program, created by a
private Master Settlement Agreement (“MSA”), negotiated between the Pradaxa
MDL Plaintiffs’ Leadership Counsel and the Boehringer Defendants (12-2385 Doc.
515). The MSA set forth specific requirements for the voluntary settlement
program, and each Pradaxa Claimant wishing to opt in to the settlement was
required to submit an Opt-in Form by the Court-established deadline of July 9,
2014.
Mr. Ougle timely opted into the MSA. Mr. Ougle’s counsel (at the time), 2
John D. Sileo, certified Mr. Ougle’s Opt-In form on July 8, 2014 (Doc. 12-2). As a
result, Mr. Ougle became a Participating Claimant under the MSA. The MSA
(Section 5.1) and the certification (Doc. 12-2) specifically provided that the
election to opt-in to the settlement was irrevocable and that the claimant was
waiving all rights to pursue any Pradaxa related claims in court.
Under the MSA, each Participating Claimant was required to post the
Claims Administrator’s secure portal a Claims Package Submission containing
the following:
1. A Phase One Payment Application and, if applicable, a Phase Two
Supplemental Payment Application
2. An executed Medical Records Authorization Form
3. An executed Release
4. An executed Stipulation of Dismissal

2

As is noted throughout, under Louisiana law, it appears that Mr. Sileo ceased being Mr. Ougle’s
counsel when Mr. Ougle died in September 2014.

Page 2 of 10

5. If applicable, a Death Certificate
(MSA ¶ 7.1). As a participating claimant, Mr. Ougle executed the required release
(Doc. 14). Mr. Ougle’s release is dated July 6, 2014. Pursuant to the signed
release, Mr. Ougle released all claims – including future claims – related in any
way to Pradaxa. The release also authorized Mr. Ougle’s counsel to execute the
stipulation of dismissal required under the MSA (Doc. 14 p. 10). The executed
stipulation of dismissal, dated August 5, 2014, was submitted to the Claims
Administrator as required under the MSA (see Stipulation of Dismissal, filed
extemporaneously herewith, under seal, as Exhibit A). Once lien resolution was
completed, settlement funds were distributed to Mr. Ougle’s counsel (Doc. 12 pp.
2-3).
According to pleadings filed by Movants, Mr. Ougle died on September 3,
2014 – after opting into the MSA and after executing the release and stipulation of
dismissal. Mr. Ougle’s action remains pending in the MDL only because of the
group dismissal process adopted by the Court in CMO 90. 3 The next submission
under CMO 90 for dismissing settled cases will not be filed until December 15,
2015. Accordingly, but for the dismissal submission to be filed in December, the
settlement in this case is complete and funds have been paid to Mr. Ougle’s
attorney of record.

3

Under the MSA liens are resolved by Providio, the lien resolution administrator, before
individual settlements are paid. Under CMO 90, cases that have been paid are subsequently
submitted in groups for dismissal in accord with the MSA.

Page 3 of 10

On September 3, 2015, Movants, represented by different counsel than Mr.
Ougel, filed the instant motion to substitute plaintiff and intervene (Doc. 10,
attaching Doc. 10-2, a complaint in intervention). Movants also filed another new
complaint, similar to the complaint in intervention, in the Eastern District of
Louisiana (Doc. 12-3). Both complaints allege that Mr. Ougle suffered a
myocardial infarction in September 2014 that resulted in his death, and movants
allege that Mr. Ougle’s death is attributable to Pradaxa.
BIPI contends the request to substitute should be denied because (1) their
claims were extinguished by Mr. Ougle’s release and therefore do not survive for
purposes of pursuing the claims set forth in the complaint in intervention, and (2)
this Court’s Case Management Order 86 prescribes the procedure for Movants to
follow for purposes of claiming any settlement funds available to them as a result
of their father’s participation in the Pradaxa settlement. BIPI further contends the
request to intervene for the purpose of filing a complaint in intervention should be
denied because Movants’ claims are barred by the express terms of Mr. Ougel’s
signed release and the Movants cannot satisfy Federal Rule of Civil Procedure
24(b).
Movants have replied (Doc. 16). Movants contend Mr. Ougle’s decision to
participate in the settlement did not extinguish his claims. Rather, they argue, the
decedent’s decision to opt-in merely exchanged his action in tort for one in
contract. According to Movants, the distribution of settlement funds to attorney
John Sileo amount to an offer in settlement that must be accepted by a party with
Page 4 of 10

the requisite legal capacity. Movants contend that under Louisiana law, the
attorney-client relationship terminated automatically when Mr. Ougle died.
Accordingly, only Movants (and not John Sileo) have the authority to accept any
offer of settlement proffered after Mr. Ougle’s death. Movants have also
introduced a question as to the authenticity of Mr. Ougle’s signature on the
requisite release. However, as is discussed below, it is not entirely clear whether
the authenticity issue is presently before the Court.
ANALYSIS
Motion to Substitute and Intervene
As a preliminary matter, the Court notes Movants have questioned the
authenticity of Mr. Ougle’s signature on the executed release (Doc. 16 p. 5 n.4).
Movants attach the affidavit of Louis Paul Ougel, Sr. as support for this contention
(Doc. 16-1). However, Movants also state “there is no need to litigate the
genuineness of the signature if movers are satisfied that the procedures in the
Settlement Agreement were followed and a correct amount offered and are
convinced that they would not be likely to fare any better outside of the Settlement
Agreement.” (Doc. 16 p. 5 n.4).
As is explained more fully in the following section, to the extent that
Movants are asserting the signature on the release is not authentic, the Court
must hold an evidentiary hearing to resolve this issue and cannot rule on
Movants’ motion until the authenticity issue is resolved. The following assessment
Page 5 of 10

is given assuming there is no dispute with regard to the authenticity of Mr. Ougle’s
signature on the release.
Settlement

agreements

are

contracts,

and

their

construction

and

enforcement are governed by basic contract principles, Gutta v. Standard Select

Trust Insurance Plans, 530 F.3d 614, 617 (7th Cir.2008); Wilson v. Wilson, 46
F.3d 660, 666 (7th Cir. 1995), under applicable state contract law - in this case,
the law of Illinois. 4 Dillard v. Starcon International, Inc., 483 F.3d 502, 507 (7th
Cir.2007); Pohl v. United Airlines, Inc., 213 F.3d 336, 338 (7th Cir. 2000).
For a settlement agreement to be enforceable under Illinois contract law,
there must be an offer, acceptance, and a “meeting of the minds” as to the
material terms of the agreement. Petrich v. MCY Music World, Inc., 371 Ill.App.3d
332, 345, 308 Ill.Dec. 968, 862 N.E.2d 1171 (1st Dist.2007); Magee v. Garreau,
332 Ill.App.3d 1070, 1076, 266 Ill.Dec. 335, 774 N.E.2d 441 (2nd Dist.2002).
In the instant case, Mr. Ougle accepted the terms of the MSA (the offer) by
executing the release and authorizing his attorney to opt-in to the MSA. The
submission of the opt-in form by Mr. Ougle’s attorney communicated Mr. Ougle’s
acceptance of the terms of the MSA in a form mutually agreed to by the parties.
Thus, despite Movants’ arguments to the contrary, contract formation was
completed prior to Mr. Ougle’s death. 5 Under the MSA, payments made by the

The MSA provides for application of Illinois law. See MSA Section XIII. Further, the release
includes an Illinois choice of law provision (Doc. 14 p. 7)
5
Movants note the Louisiana Supreme Court has held that the death of a client terminates the
attorney-client relationship as a matter of law. While that may be the case, Mr. Ougle accepted the
4

Page 6 of 10

Claims Administrator to Participating Claimants relate to performance under the
terms of the MSA and not contract formation. Thus, the assertion that
distribution of the funds amounts to an offer that must be reviewed and accepted
or rejected by Mr. Ougle’s heirs misses the mark. Here, contract formation was
completed prior to Mr. Ougle’s death and while John D. Sileo was still Mr. Ougle’s
attorney.
As outlined in BIPI’s briefing, the executed release released all of Mr.
Ougle’s present and future claims related to his use of Pradaxa. This includes the
claims asserted by Movants. Additionally, Mr. Ougle’s decision to opt-in to the
settlement program was irrevocable.
Considering the above, it is evident Mr. Ougle’s claims (and the claims of
Movants) were extinguished as a result of his irrevocable opt-in to the settlement
program and his execution of a release of all claims. See Wrightsell v. Cook

County, 599 F.3d 781, 784 (7th Cir. 2010) (“in an ordinary civil settlement it is
taken for granted that the settlement extinguishes all rights to further prosecution
of the suit”).
Because Mr. Ougle’s claims have been extinguished, substitution under
Rule 25 is improper. See Fed. R. Civ. P. 25 (“If a party dies and the claim is not
extinguished, the court may order substitution of the proper party.”). Likewise,
Movants’ request to intervene must be denied because they cannot meet the

terms of the MSA (forming the subject contract) prior to his death and while John D. Sileo was
still his attorney.

Page 7 of 10

requirements of Rule 24(b). See Sokaogon Chippewa Community v. Babbitt, 214
F.3d 941, 946 (7th Cir. 2000) (to intervene under Rule 24, “at some fundamental
level the proposed intervenor must have a stake in the litigation.”).
With regard to CMO 86, the Court agrees that as of September 3, 2014, Mr.
Ougle became a “Deceased Claimant” as that term is defined therein (“any person
who ingested Pradaxa and asserted a claim under the Settlement Agreement . . .
who is deceased at the time payment is to be distributed by the Claims
Administrator on the claim.”) (CMO 86 ¶ 1). In the instant case, CMO 86
materials were not required prior to distribution of funds because no one
informed the Claims Administrator of Mr. Ougle’s death. Accordingly, the funds
have already been distributed to attorney John D. Sileo. 6 Nonetheless, as noted by
BIPI, nothing in CMO 86 precludes the Claims Administrator from remaining
involved to accept CMO 86 materials from Movants and to facilitate the
distribution of the funds to Mr. Ougel’s heirs.
For the reasons discussed above, assuming Movants inform the Court there
is no dispute with regard to the authenticity of Mr. Ougle’s signature on the
release (as described below), the Court will (1) deny the motion to substitute and
intervene and (2) direct Movants to submit CMO 86 materials to the Claims
Administrator to facilitate distribution of the funds accordingly.

6

The Court notes that, under Louisiana law, attorney Sileo appears to be Mr. Ougle’s former
counsel.

Page 8 of 10

Authenticity of Signature on Release
A district court has the power to enforce a settlement agreement in a case
pending before it. Wilson v. Wilson, 46 F.3d 660, 664 (7th Cir. 1995). When the
material facts are not in dispute, “the question whether a contract has come into
being is one of law.” Gutta v. Standard Select Trust Ins. Plans, 530 F.3d 614, 618
(7th Cir. 2008). If there are disputed material facts, the district court should hold
an evidentiary hearing. Wilson, 46 F.3d at 664; see also Sims–Madison v. Inland

Paperboard & Packaging, Inc., 379 F.3d 445, 449 (7th Cir. 2004).
As noted above, it is not entirely clear whether Movants are asserting there
is an issue with regard to the authenticity of Mr. Ougle’s signature on the release.
To the extent Movants are raising this issue, there is a disputed material fact and
the Court must hold an evidentiary hearing resolving this fact. If the Court
determines the signature is not authentic, Mr. Ougle’s opt-in to the settlement
would be invalid. As such, Mr. Ougle would become a non-participating claimant,
would be withdrawn from the settlement, and Mr. Ougle’s heirs would have to
proceed under CMO 78.
On the other hand, if there is no dispute with regard to the authenticity of
Mr. Ougle’s signature: (1) an evidentiary hearing is not necessary and (2) the
Court may proceed with entering an order denying the motion to substitute and
intervene and directing Movants to proceed under CMO 86.

Page 9 of 10

CONCLUSION
In light of the above, the Court will DEFER ruling on Movants’ motion to
substitute or intervene. The Court DIRECTS Movants to file a notice with the
Court, on or before October 16, 2015, stating whether Movants are asserting
Mr. Ougle’s signature on the release is not authentic. If a question as to the
authenticity of Mr. Ougle’s signature is asserted, the Court will schedule an
evidentiary hearing. If Movants inform the Court there is no dispute with regard to
the authenticity of Mr. Ougle’s signature, the Court will enter an order summarily
denying Movants’ motion to substitute or intervene (for the reasons described
herein).
IT IS SO ORDERED.
Signed this 8th day of October, 2015.

Digitally signed by
David R. Herndon
Date: 2015.10.08
13:33:57 -05'00'
United States District Judge

Page 10 of 10