Fuller v. Boehringer Ingelheim Pharmaceuticals Inc et al

Filing 8

ORDER DISMISSING CASE WITH PREJUDICE. Plaintiff has failed to comply with the requirements of CMO 78 and has failed to show good cause for the noncompliance within the time allowed by CMO 78. Accordingly, in accord with CMO 78, plaintiff's claims are dismissed WITH prejudice. The Court DIRECTS the CLERK OF THE COURT to ENTER JUDGMENT ACCORDINGLYSigned by Judge David R. Herndon on 10/30/2014. (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:
Peragine v. Boehringer Ingelheim
Pharmaceuticals, Inc. et al., No. 3:13-cv-51147DRH-SCW
Jones v. Boehringer Ingelheim
Pharmaceuticals, Inc., No. 3:13-cv-51225-DRHSCW
Mallette v. Boehringer Ingelheim
Pharmaceuticals Inc. et al., No. 3:14-cv-50054DRH-SCW
Patterson v. Boehringer Ingelheim
Pharmaceuticals, Inc. et al., No. 3:14-cv50277-DRH-SCW
Siegel v. Boehringer Ingelheim
Pharmaceuticals, Inc. et al., No. 3:14-cv50301-DRH-SCW
Freely v. Boehringer Ingelheim
Pharmaceuticals, Inc. et al., No. 3:14-cv50309-DRH-SCW
Williams v. Boehringer Ingelheim
Pharmaceuticals, Inc. et al., No. 3:14-cv50327-DRH-SCW
Fuller v. Boehringer Ingelheim
Pharmaceuticals Inc et al., No. 3:14-cv-50416DRH-SCW

Page 1 of 5

Palmer v. Boehringer Ingelheim
Pharmaceuticals, Inc. et al., No. 3:14-cv60005-DRH-SCW
ORDER OF DISMISSAL WITH PREJUDICE
HERNDON, District Judge:
This matter is before the Court on defendants’ (Boehringer Ingelheim
Pharmaceuticals Inc. and Boehringher Ingelheim International) motions to show
cause why the above captioned cases should not be dismissed with prejudice,
filed pursuant to Case Management Order Number 78 (“CMO 78”) (Doc. 519).
None of the above captioned plaintiffs has responded to the motions. Accordingly,
the Court accepts as true the allegations in defendants’ motions to show cause.
For the reasons discussed herein, the motions are GRANTED.
CMO 78 applies to all plaintiffs (1) with personal injury claims pending in
this MDL at the time CMO 78 was entered and (2) who did not opt-in to the
voluntary settlement program, as well as (3) all plaintiffs with personal injury
claims later filed in, removed to, or transferred to this MDL after the entry of
CMO 78. All of the above captioned plaintiffs are subject to the requirements of
CMO 78.
Pursuant to Section I.A. of CMO 78, plaintiffs are required to send a written
notice to pharmacies and healthcare providers requesting preservation of records.
CMO 78 also requires service of a signed certification verifying that all notices
were sent as required. Sections II.A.- C. of CMO 78 require plaintiffs to produce a
number of documents and things. First, plaintiffs are required to serve a Plaintiff
Page 2 of 5

Fact Sheet (“PFS”) and authorizations in compliance with CMO 15. Second,
plaintiffs are required to produce

all pharmacy records

regarding the

dispensation of medication and certain medical records. Third, plaintiffs are
required to submit a signed affidavit attesting that all the records required under
CMO 78 were collected and produced. Finally, Sections II.D. and E. of CMO 78
require that plaintiffs produce certain expert reports no later than thirty (30) days
after the Opt-In Deadline, or by September 11, 2014.
Pursuant to CMO 78, defendants notify plaintiffs who are not in compliance
with the above listed requirements. After receiving such notice, plaintiffs are given
a certain amount of time to cure the identified CMO 78 deficiencies (“Cure
Period”). The Cure Period is the only extension permitted under CMO 78.1 If the
plaintiff fails to cure the identified deficiencies during the Cure Period, defendants
“may file a Motion to Show Cause why the case should not be dismissed with
prejudice.” (Doc. 519 §§ I.D., II.G.). Upon the filing of such a motion, the plaintiff
has “twenty (20) days to respond to the Motion and show good cause why the case
should not be dismissed” (Doc. 519 §§ I.D., II.G.). “Any failure to respond to the
Motion within the specified period shall lead to dismissal of the case with
prejudice.” (Doc. 519 §§ I.D., II.G.).
1

CMO 78 states, in relevant part as follows: (1) as to Section I, “[a]ny Plaintiff who fails to fully
comply with the requirements of Paragraphs A, B, and C above shall be provided notice of such
failure by email or fax from Defendants’ counsel and shall be provided fourteen (14) additional
days to cure such deficiency (“Cure Period”) to be calculated from the receipt of such notice of
deficiency from counsel for the Defendants. No other extensions will be granted unless agreed to
by all parties” and (2) as to Section II, any plaintiff who fails to comply “shall be given notice of
such failure by email or fax from Defendants’ counsel and shall be provided twenty (20) additional
days to cure such deficiency (“Cure Period”) to be calculated from receipt of such notice of
deficiency from counsel for the Defendants. No other extensions will be granted” (Doc. 519).

Page 3 of 5

In the instant case, the above captioned plaintiffs failed to comply with one
or more requirements of CMO 78.2 Further, the plaintiffs received CMO 78
deficiency notices and failed to cure the identified deficiencies within the cure
period. As a result, defendants filed motions to show cause in accord with CMO
78. The time for responding to defendants’ motions to show cause has passed and
none of the above captioned plaintiffs have responded. Therefore, in accord with
the provisions of CMO 78, the above captioned plaintiffs’ claims are subject to
dismissal WITH prejudice.
The above captioned plaintiffs have failed to comply with the requirements
of CMO 78 and have failed to show good cause for the noncompliance within the
time allowed by CMO 78. Accordingly, the claims of the above captioned plaintiffs

2

Prior to the filing of the subject motions to show cause, counsel representing one or more of the
above captioned plaintiffs withdrew. In each case involving withdrawn counsel, the Court entered
an order allowing counsel to withdraw and directing the plaintiff to file a supplementary entry of
appearance within 21 days. The Court expressly declined to grant any production or discovery
extensions. In each case, the plaintiff failed to timely file a supplementary entry of appearance.

Page 4 of 5

are DISMISSED WITH PREJUDICE.
The Court DIRECTS the CLERK OF THE COURT to ENTER JUDGMENT
ACCORDINGLY.
IT IS SO ORDERED.
Signed this 30th day of October, 2014.

David R.
Herndon
2014.10.30
11:49:29 -05'00'
United States District Court

Page 5 of 5