Stone v. Abbott Laboratories Inc. et al
GRANTING 14 Defendants' Motion to Dismiss with Prejudice for Failure to Prosecute, or in the Alternative, Motion for Summary Judgment Based on Lack of Proximate Causation Evidence. This action is DISMISSED on the merits. The case is CLOSED, and judgment will be entered accordingly. Signed by Judge Nancy J. Rosenstengel on 12/1/2017. (jmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE DEPAKOTE:
ABBOTT LABORATORIES, INC., and
Case No. 15-CV-821-NJR-SCW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court is Defendants’ Motion to Dismiss with Prejudice for
Failure to Prosecute, or in the Alternative, Motion for Summary Judgment Based on Lack
of Proximate Causation Evidence (Doc. 14). For the reasons set forth below, the Court
grants the Motion to Dismiss with Prejudice and grants the Motion for Summary
Judgment Based on Lack of Proximate Causation Evidence.
Plaintiff Lisa Stone is one of more than 600 claimants in the Depakote mass action
revolving around the teratogenicity warning in the Depakote label and the alleged
failure of Defendants 1 to adequately warn of the true risks of birth defects. Claims based
on the alleged personal injuries of Lisa Stone’s daughter, B.F. (born in 1992), were first
filed in California state court on April 8, 2013. Abbott removed those claims to the
In 2013, Defendant Abbott Laboratories, Inc., split off part of its business, including the rights to
Depakote, into a separate publicly traded company, Abbvie, Inc. Accordingly, individuals filing claims
after 2013 have included both Abbott and Abbvie as defendants in the litigation.
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United States District Court for the Southern District of California on September 19,
2013. (Doc. 14-1). The parties agreed to voluntarily dismiss those claims on July 8, 2015,
with certain agreed upon conditions. (Doc. 14-2). On July 28, 2015, Stone refiled her
claim in the Southern District of Illinois (see Doc. 1)., alleging that her daughter
experienced heart defects due to prenatal exposure to Depakote and died as a result. 2
In the summer of 2016, the Court began ordering the parties to depose the doctor
who prescribed Depakote to the biological mother of the injured party during the critical
period before conception. This witness (hereinafter referred to as the “key prescribing
physician”) is unquestionably a critical witness in each claim in the mass action. On
October 31, 2016, Lisa Stone, along with several other Plaintiffs, were selected to depose
the key prescribing physician in their cases. (Case No. 12-CV-52, Docs. 653, 653-1, at
p. 3). Plaintiffs were instructed to “alert the Court concerning any prescribing physicians
who cannot be located and/or produced for deposition within this timeframe as soon as
possible but in any event before the expiration of the 90 day deadline.” (Case No.
12-CV-52, Doc. 653, at p. 2). Unfortunately, the key prescribing physician has never been
deposed in this case, and a “No-Prescriber Report” was not filed until nearly nine months
after the initial October 31, 2016 Order. (Doc. 15).
In addition, Plaintiff demonstrated consistent dilatory conduct between the
October 31, 2016 Order and the October 27, 2017 response to Defendants’ motion to
dismiss. Specifically, Plaintiff failed to meet the deadlines established by the Court, and
her counsel failed to appear at the required discovery conferences as instructed by
In prior orders, the Court has noted that the minor plaintiff is the true party in interest, and the Court is
required to take extra caution when considering a dismissal with prejudice. When the mother represents
the decedent, however, as Lisa Stone does here, there are no such additional concerns.
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Magistrate Judge Williams. See (Doc. 14-6, pp. 2-4; Doc 14-9, pp. 3-5). For example,
counsel failed to appear at the January 24, 2017 Discovery Dispute Conference (“DDC”),
and the Court entered an order that Plaintiff “either provide the appropriate prescriber
and update Abbott and/or update Abbott as to why there cannot be one identified, in
which case a report will be filed within 14 days.” (Doc. 14-9, at p. 28, lines 21-24; see also
Case No. 12-CV-52, Doc. 765, at p. 1-2). Plaintiff did not file a report by the deadline.
When Plaintiff’s counsel again failed to appear at the DDC on April 12, 2017 and
provide the necessary update as to the prescriber, Magistrate Judge Williams ordered
the parties to file a No-Prescriber Status Report “no later than May 3, 2017.” (Case No.
12-CV-52, Doc. 914, at p. 3; see also Doc. 14-11, at p. 28). Plaintiff failed to submit the
no-prescriber report by May 3, 2017 and had to be instructed again by Magistrate Judge
Williams to file the report (Doc. 14-6, at p. 18). During the June 22, 2017 discovery
conference—at which Plaintiff’s counsel again failed to appear, 3 —Magistrate Judge
Williams recommended that Defendants file a motion to dismiss for failure to prosecute.
(Doc. 14-12, at p. 17, lines 13-15; Case No. 12-CV-52, Doc. 1001, at p. 2).
Incredibly, after Defendants filed the Motion to Dismiss on August 1, 2017
(Doc. 14), it took a separate Order to Show Cause (entered on October 17, 2017) before
Plaintiff’s counsel bothered to respond to the Motion to Dismiss. Critically, the
“response” never actually addresses the dilatory conduct by Plaintiff or the lack of
proximate causation evidence in her case.
Plaintiff’s counsel also failed to appear at the October 12, 2017 DDC. Plaintiff’s counsel appeared via
telephone at the beginning of the DDC but was not present by the time the Court reached Plaintiff’s case.
(Case No. 12-CV-52, Doc. 1114, at p. 17, lines 16-25).
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A defendant may move to dismiss an action if the plaintiff fails to prosecute the
case. FED. R. CIV. P. 41(b). Dismissal based on failure to prosecute “operates as an
adjudication on the merits.” Id. Dismissal with prejudice is a harsh sanction that can be
employed when a plaintiff demonstrates a pattern of dilatory or contumacious behavior.
Patterson by Patterson v. Coca-Cola Bottling Co. Cairo-Sikeston, 852 F.2d 280, 285 (7th Cir.
1988). There is “[n]o exact rule . . . as to when a court is justified in dismissing a case for
failure to prosecute. Each case must be looked at with regard to its own particular
procedural history and the situation at the time of dismissal.” Stevens v. Greyhound Lines,
710 F.2d 1224, 1228 (7th Cir. 1983) (quoting Scarver v. Allen, 457 F.2d 308, 309 (7th Cir.
This Court provided Plaintiff numerous opportunities to advance her claim and
prosecute the case, and yet she failed to meet deadlines and appear at required hearings.
While there is not a “rigid rule” requiring the Court to warn Plaintiff’s counsel, Fischer v.
Cingular Wireless LLC, 446 F.3d 663, 665 (7th Cir. 2006), the Court nevertheless explicitly
warned Plaintiff of the possibility of dismissal and the need to respond. (Doc. 16.)
Following the Court’s warning, Plaintiff finally responded to the motion to dismiss in
the form of a declaration by attorney Elliott Kanter. (Doc. 17). The two page declaration
does not explain why it took eight months to file the required status report, why Plaintiff
repeatedly failed to appear at the required DDCs, or even what proximate causation
evidence remains to prove her claim. 4
Plaintiff’s response also does not address the series of what may generously be referred to as
“misstatements” by Mr. Kanter to the Court concerning the parties’ efforts to schedule the depositions in
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While Plaintiff did eventually file the No-Prescriber Report, it was only docketed
after months of unreasonably dilatory conduct. Plaintiff failed to comply with the
deadlines of numerous Court orders, failed to attend at least four DDCs, and twice
(intentionally or not) misstated the status of the case to the Court. Failing to comply with
deadlines and failing to attend Court conferences is by itself conduct that justifies
dismissal. Daniels v. Brennan, 887 F.2d 783, 788 (7th Cir. 1989) (dismissal affirmed due to
“plaintiff’s counsel’s failures to appear and comply with court deadlines”); Lockhart v.
Sullivan, 925 F.2d 214, 218 (7th Cir. 1991) (dismissing for failure to prosecute based on
“plaintiff’s unexplained failure to attend the status hearing, her own deposition, the
scheduled discovery conference and her failure to otherwise cooperate with discovery”).
Plaintiff’s failure to file a timely response to the pending motion further demonstrates “a
lack of desire to prosecute the action[,]” which is yet another reason to dismiss the case.
Patterson, 852 F.2d at 285.
Moreover, Plaintiff’s misstatements as to the status of the case, which clouded the
actual reason for the delay in scheduling the prescribing physician deposition,
demonstrate a disregard of the judicial process. In the context of a mass action, the Court
has a special interest in dismissing claims for failure to prosecute in order to “keep
administrative control over [its] own dockets and to deter other [plaintiffs] from
engaging in similar dilatory behavior.” Washington v. Walker, 734 F.2d 1237, 1239 (7th Cir.
1984). If every plaintiff involved in this mass action followed the actions presented in
this case, the Court would never be able to reach a timely and efficient disposition of the
2016. Compare (Doc. 14, pp. 3-4) with (Doc. 17). This conduct alone raises serious issues concerning
counsel’s attention to detail and his diligence to advance this claim.
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claims at issue. For these reasons, the Court GRANTS Defendants’ motion to dismiss
Defendants alternatively move for summary judgment concerning the apparent
lack of proximate causation evidence in Plaintiff’s claim. (Doc. 14, pp. 6-10). The local
rules provide that an adverse party in a civil case has thirty days after service of a motion
for summary judgment in which to file a response. S. D. Ill. L. R. 7.1(c)(1). “Failure to
timely file a response to a motion may, in the Court’s discretion, be considered an
admission of the merits of the motion.” Id. at 7.1(c). Defendants’ alternative motion for
summary judgment was not buried or hidden in their submission; it was explicitly stated
both in the caption of the case and in the text of the docket entry. (Doc. 14). Despite this
clear notice, Plaintiff did not respond within the thirty day window. 5
And even more concerning, the Court notes that Plaintiff was ordered to show
cause on October 16, 2017 as to “why her case should not be (a) dismissed with
prejudice or in the alternative, (b) summary judgment granted in favor of Defendants.”
(Doc. 16). Despite the explicit notice and warning, Plaintiff did not provide any response
to Defendants’ motion for summary judgment. Accordingly, the Court treats the failure
to respond to the motion for summary judgment as an admission of the asserted facts
and finds that no competent witness will be able to testify regarding the required
proximate causation evidence. Without this critical evidence, Defendants’ motion for
summary judgment is GRANTED.
Plaintiff did finally file the required No-Prescriber Report seventeen days after Defendants filed the
Motion to Dismiss. But nothing in the report addressed the issues raised in the motion to dismiss or the
motion for summary judgment. (Doc. 15). Accordingly, the Court finds this document non-responsive to
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For the reasons set forth above, Defendants’ Motion to Dismiss with Prejudice for
Failure to Prosecute, or in the Alternative, Motion for Summary Judgment Based on Lack
of Proximate Causation Evidence (Doc. 14) is GRANTED. This action is DISMISSED
with prejudice, and the Clerk of Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: December 1, 2017
NANCY J. ROSENSTENGEL
United States District Judge
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