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

Filing 112

MEMORANDUM OF LAW & ORDER. IT IS HEREBY ORDERED: 1.The Court ADOPTS the Report and Recommendation of United States Magistrate Judge Franklin L. Noel dated July 11, 2013 96 . 2.Defendants' Motion to Enforce Settlement Agreements 47 is GRANTED. 3.Plaintiffs filed Plaintiffs' Motion to Take Judicial Notice of Facts (Federal Rule of Evidence 201) 107 is DENIED. (Written Opinion). Signed by Chief Judge Michael J. Davis on 8/26/13. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

IN RE: MIRAPEX PRODUCTS
LIABILITY LITIGATION

MDL File No. 07-1836 (MJD/FLN)

This document relates to:
MARY MAGALHAES and
JOSEPH MAGALHAES,

Civil File No. 11-412 (MJD/FLN)

Plaintiffs,
v.

MEMORANDUM OF LAW & ORDER

BOEHRINGER INGELHEIM
PHARMACEUTICALS, INC., et al.,
Defendants.
H. Lee Thompson, The Thompson Law Firm, Counsel for Plaintiffs.
Tracy J. Van Steenburgh, Scott A. Smith, and Dana M. Lenahan, Nilan Johnson
Lewis P.A., and Bruce R. Parker and Jason C. Rose, Venable LLP, Counsel for
Defendant Boehringer Ingelheim Pharmaceuticals, Inc.
Joseph M. Price, Faegre Baker Daniels LLP, and Cheryl Kawezya Burris and Lori
B. Leskin, Kaye Scholer LLP, Counsel for Defendants Pfizer, Inc., Pharmacia
Corporation, and Pharmacia & Upjohn Company LLC.
The above-entitled matter comes before the Court upon the Report and
Recommendation of United States Magistrate Judge Franklin L. Noel dated July
11, 2013. Plaintiffs filed objections to the Report and Recommendation. On
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August 15, 2013, Plaintiffs filed Plaintiffs’ Motion to Take Judicial Notice of Facts
(Federal Rule of Evidence 201) [Docket No. 107], which the Court interprets to be
an untimely additional objection the Report and Recommendation. The Court
need not consider this additional and untimely objection; however, even if the
Court did consider the filing, it would reach the same decision in this matter.
Pursuant to statute, the Court has conducted a de novo review upon the
record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b). Based upon that review, the
Court adopts the Report and Recommendation of United States Magistrate Judge
Franklin L. Noel dated July 11, 2013.
It is undisputed that, during October and November 2011, Plaintiffs gave
their attorney, H. Lee Thompson, actual authority to settle their case. (See Def.
Ex. 29; [Docket No. 90] May 28, 2013 Tr. 8-9; Def. Ex. 2; May 28 Tr. 12-13.)
Thompson presented multiple authorized settlement offers to defense counsel on
Plaintiffs’ behalf. (Id.) Plaintiffs never indicated that Thompson’s settlement
authority was limited or had been revoked. (May 28 Tr. 10, 13.) Plaintiffs were
aware of the Court’s November 7, 2011 Order requiring Thompson to meet with
them, discuss the merits of their case, arrive at a new settlement demand, and
communicate that demand to Defendants before January 15, 2012. (May 28 Tr.

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10-11.) Plaintiffs authorized Thompson to present a binding settlement demand
on their behalf, which he did on November 22, 2011. (Def. Ex. 2; May 28 Tr. 1213.) Plaintiffs did nothing to disabuse Defendants of the reasonable inference
that Thompson had authority to present settlement offers on their behalf. (May
28 Tr. 13.) These facts demonstrate that, by Plaintiffs’ own actions and inactions,
they created, at a minimum, apparent authority for Thompson to make a binding
settlement offer on March 2, 2012. Before Defendants accepted Thompson’s
March 2, 2012 demand, defense counsel contacted Thompson to verify that he
had authority to settle Plaintiffs’ claims, and Thompson represented that he did.
([Docket No. 85] Apr. 30, 2013 Tr. 37-39.) Defendants were reasonable to rely
upon that apparent authority to their detriment, accept the offer, and settle an
entire group of cases for a negotiated aggregate sum. Thus, Plaintiffs are bound
by Thompson’s offer. See, e.g., Barry v. Barry, 172 F.3d 1011, 1015 (8th Cir. 1999);
Bergstrom v. Sears, Roebuck & Co., 532 F. Supp. 923, 933 (D. Minn. 1982).
Although this matter has been extensively litigated, including initial
briefing, a previous Report and Recommendation, objections to that Report and
Recommendation, an Order adopting in part the Report and Recommendation
and remanding the issue of actual or apparent authority and estoppel, two

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evidentiary hearings, additional briefing before the Magistrate Judge, and a
second Report and Recommendation, Plaintiffs now raise entirely new legal
arguments in their objections: that Minnesota law does not apply and that the
November 7, 2011 Order expired on January 15, 2012. Because Plaintiffs never
raised either of these arguments before the Magistrate Judge these objections are
waived. See Ridenour v. Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1067
(8th Cir. 2012).
Moreover, with regard to the choice of law analysis, until now, Plaintiffs
themselves have continuously advocated that Minnesota law applied, and, in
their objections, they do not offer any choice of law analysis, suggest which other
state’s law should apply, or offer any prediction of how use of another state’s law
would be material to the Court’s analysis. And, were the Court to address the
choice of law question, under the choice of law analysis of the forum state,
Minnesota, the Court would likely conclude that Minnesota law applies. See,
e.g., Transclean Corp. v. Motorvac Techs., Inc., No. Civ.01-287 JRT/FLN, 2002 WL
31185886, at *7-*8 (D. Minn. Sept. 30, 2002).
With regard to the expiration argument, there is no indication that the
Order expired on January 15, 2012, and, even if it had, such an expiration would

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not be relevant to the apparent authority analysis. Plaintiffs, through their
actions and inactions, created, at a minimum, apparent authority for Thompson
to make binding settlement offers, they did nothing to indicate to Defendants
that Thompson’s authority had been limited or revoked, and, on March 2, 2012,
Thompson did make a written settlement offer, which Defendants accepted and
relied upon to their detriment.
Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1. The Court ADOPTS the Report and Recommendation of United States
Magistrate Judge Franklin L. Noel dated July 11, 2013 [Docket No. 96].
2. Defendants’ Motion to Enforce Settlement Agreements [Docket No. 47]
is GRANTED.
3. Plaintiffs filed Plaintiffs’ Motion to Take Judicial Notice of Facts
(Federal Rule of Evidence 201) [Docket No. 107] is DENIED.

Dated: August 26, 2013

s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court

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