Radzevich v. Boehringer

Filing 14

ORDER DISMISSING CASE WITH Prejudice. The Clerk shall enter judgment accordingly. Signed by Judge David R. Herndon on 3/27/2015. (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:

Radzevich v. Boehringer Ingelheim
Pharmaceuticals, Inc. et al., No. 3:14-CV-60041DRH-SCW

ORDER OF DISMISSAL WITH PREJUDICE
HERNDON, District Judge:
I.

INTRODUCTION

This matter is before the Court on Boehringer Ingelheim Pharmaceuticals
Inc.’s (“BIPI”) Motion to Show Cause why the case should not be dismissed with
prejudice (Doc. 9 and supplement Doc. 10) for failure to comply with Case
Management Order Number 78 (“CMO 78”) (MDL 2385 Doc. 519). The plaintiff
has responded (Doc. 12) and BIPI has replied (Doc. 13). For the reasons
described herein, the motion is GRANTED. Accordingly, plaintiff’s action is
DISMISSED WITH PREJUDICE.
II.

BACKGROUND

On May 29, 2014, the Court entered CMO 78. The provisions in CMO 78
are the result of an extensive mediation between the Pradaxa MDL Plaintiffs’

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Leadership Counsel and the Boehringer Defendants. The negotiations were
vigorous, at arm’s length, and in good faith.
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.
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
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

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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
subject 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.).
This action was transferred into the MDL on November 10, 2014 - after the
entry of CMO 78 (entered on May 29, 2014). Accordingly, the plaintiff is subject to
the requirements of CMO 78.
BIPI’s motion seeks dismissal of plaintiff’s action for failure to comply with the
provisions of CMO 78. Specifically, BIPI contends plaintiff has failed to produce
expert reports on general and specific causation in accordance with CMO 78 and
Federal Rule of Civil Procedure 26.

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”; (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).

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III.

THE PARTIES’ CONTENTIONS

On November 7, 2014, BIPI provided plaintiff with a copy of CMO 78 and
asked plaintiff to note the applicable deadlines and requirements (Doc. 9-1)
(“CMO 78 Notice”). In accord with CMO 78, the plaintiff had 30 days from the
CMO 78 Notice or until December 7, 2014 to comply with the expert report
requirements. The plaintiff failed to meet the December 7, 2014 deadline.
Accordingly, BIPI provided notice of the deficiency by correspondence dated
December 9, 2014 (Doc. 9-2). Per CMO 78, plaintiff had 20 days (until December
29, 2014) to cure the deficiency. The plaintiff did not meet this deadline.
Accordingly, on January 12, 2015, BIPI filed the instant motion to show cause.
As of the filing of the motion to show cause, the plaintiff still had not submitted
any of the requisite expert reports.
The plaintiff had 20 days to file a response to the defendant’s motion –
making the plaintiff’s deadline Monday, February 2, 2015. After the deadline for
responding had expired, the Court learned that plaintiff failed to register for the
CM/ECF filing system and, therefore, was not served an electronic copy of the
defendant’s motion to show cause when it was electronically filed (Doc. 10).
Therefore, on February 9, 2015, BIPI served both its initial motion to show cause
and its February 9, 2015 supplement on plaintiff via email and hardcopy. At that
time, the Court extended the plaintiff’s responsive pleading time, allowing the
plaintiff until March 2, 2015 to respond to the motion to show cause.

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In its February 9, 2015, supplemental pleading, the defendant provided the
Court with an update as to the plaintiff’s expert reports. The defendant reported
that on February 2, 2015 – twenty days after the defendant filed its motion to
show cause and the same day as the deadline to respond to the defendant’s
motion to show cause – plaintiff’s counsel provided defendant with generic and
case specific expert reports. Notably, the reports were provided more than a
month after they were due (December 7, 2014) and more than a month after the
plaintiff’s deadline for curing CMO 78 deficiencies (December 29, 2014) (the only
extension permitted under CMO 78).
Plaintiff filed a response to the defendant’s motion on March 2, 2015. As
good cause for failure to timely comply with the requirements of CMO 78, plaintiff
merely states that the holidays interfered with his ability to complete the expert
report requirements in a timely manner (Doc. 12).
The Court further notes that the untimely expert reports did not include the
expert’s CV. The expert’s CV was subsequently provided on February 9, 2015.
Subsequently, by letter dated February 26, 2015, the plaintiff provided defendant
with an updated CV as well as revised versions of the general and case-specific
expert reports. Defendant contends the revised general and case-specific expert
reports remain deficient (Doc. 13).

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IV.

ANALYSIS

The terms of CMO 78 require strict compliance. Pursuant to CMO 78, noncompliant parties are subject to dismissal with prejudice absent a showing of
good cause for the non-compliance. As the Court has stated in the past, the
Court's role with regard to the settlement agreement and orders related thereto is
to enforce the agreements as written.
There is no dispute that the plaintiff did not timely comply with the
requirements of CMO 78. The reports were provided more than a month after the
deadline in CMO 78 to produce expert reports. The plaintiff’s late production of
these materials does not and cannot cure the plaintiff’s failure to produce these
materials by the CMO 78 deadline.
Further, the plaintiff has failed to establish good cause for the
noncompliance. Plaintiff merely states that the holidays interfered with his ability
to comply with the expert report requirements. This does not amount to good
cause. See Pretzel & Stouffer, Chartered v. Imperial Adjusters, Inc., 28 F.3d 42,
46

(7th

Cir.

1994)

(rejecting

as

good

cause

an

attorney's

difficulties

communicating with his client). See also Connecticut Nat. Mortg. Co. v.

Brandstatter 897 F.2d 883, 884–885 (7th Cir. 1990) (rejecting as good cause
“routine back-office problems”).
Finally, beyond the reports being produced over a month after the deadline,
as outlined in the defendant’s motion, they are also materially insufficient and do
not satisfy the requirements of CMO 78 and Federal Rule of Civil Procedure 26.

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V.

CONCLUSION

The Court finds that the plaintiff is not in compliance with the
requirements of CMO 78 and has failed to show good cause for the
noncompliance.
Accordingly, the Court DISMISSES plaintiff’s case WITH PREJUDICE for
failure to comply with CMO 78.
The Court DIRECTS the CLERK OF THE COURT to ENTER JUDGMENT
ACCORDINGLY.
IT IS SO ORDERED.
Signed this 27th day of March, 2015.

Digitally signed by
David R. Herndon
Date: 2015.03.27
15:15:34 -05'00'
United States District Court

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