Chauvin et al v. Bayer Healthcare Pharmaceuticals, Inc.

Filing 29

MEMORANDUM OPINION AND ORDER granting 90-Day PTO 18 Extension. (Written Opinion) Signed by Chief Judge John R. Tunheim on 4/6/2020. (HAZ)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
IN RE: FLUOROQUINOLONE
PRODUCTS LIABILITY LITIGATION

THIS DOCUMENT RELATES TO:

MDL No. 2642 (JRT)
MEMORANDUM OPINION AND ORDER
GRANTING 90-DAY PTO 18 EXTENSION
Master Docket Case No. 0:15-md-02642

Chauvin v. Bayer HealthCare
Pharmaceuticals Inc.
Case No. 0:18-cv-00579-JRT.

The present dispute requires the Court the determine whether, based on the
Court’s prior pre-trial orders (“PTO”), Plaintiffs’ Leadership or Litigating Plaintiffs are now
responsible for retaining and producing general causation and liability experts for pretrial motion practice. The Court finds that this responsibility is not covered by PTO 4, but
that PTO 18 does require Plaintiffs to undertake this responsibility. The Court will
therefore also find, by failing to retain such experts, that Plaintiffs Barbara and Mark
Chauvin (the “Chauvins”) are noncompliant with PTO 18. Instead of dismissing their case
with prejudice for failure to comply with PTO 18, however, the Court will grant the
Chauvins 90 days from the date of this Order to comply with PTO 18.

BACKGROUND
The parties are familiar with the factual and procedural background of this multidistrict litigation (“MDL”). Accordingly, the Court will only discuss here the factual and
procedural history necessary to resolve the current dispute.
The Court issued PTO 4 on March 17, 2016. (PTO No. 4, March, 17, 2016, MDL No.
15-2642, Docket No. 112.) PTO 4 designates Plaintiffs’ Leadership Counsel and governs
their activities. (Id. at 1.) PTO 4 states, in relevant part, that Plaintiffs’ Leadership “shall
take the lead in litigating these matters on behalf of all Plaintiffs, meaning that they shall
play the lead role in making strategic, tactical, and procedural decisions” on behalf of all
Plaintiffs. (Id. at 3.) Even so, PTO 4 notes that individual plaintiffs, “retain the right to
choose to act in their own best interest in these proceedings.” (Id.) PTO 4 also requires
Plaintiff’s Leadership to perform certain general discovery and pre-trial motion practice
for the benefit of all plaintiffs, including “[i]nitiat[ing], coordinat[ing] and conduct[ing] all
generic pretrial discovery on behalf of all Plaintiffs” and “[s]ubmit[ing] . . . any motions to
the Court on behalf of all Plaintiffs as well as oppos[ing], as appropriate, any motions
submitted by Defendants” on behalf of all Plaintiffs. (Id. at 3–4.) Finally, PTO 4 notes that
Plaintiffs’ Leadership has responsibility for trial preparation for “bellweather and/or test
case trial(s).” (Id. 6 (internal quotation marks omitted).)
To meet the demands of PTO 4 and for the benefit and on behalf of all Plaintiffs,
Plaintiffs’ Leadership retained four experts that produced reports on general causation

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and liability. (See Decl. of Lori B. Leskin ¶¶ 3–9, Exs. 1–7, May 23, 2018, MDL No. 15-2642,
Docket No. 615 (citing reports and depositions of the general experts).).
On May 23, 2018, Bayer filed a Motion to Exclude three of the four experts under
Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). (Mot. to
Exclude, May 23, 2018, MDL No. 15-2642, Docket No. 613). Plaintiffs’ Leadership opposed
the Motion, and Bayer replied. (See Pl.’s Mem. Opp. Mot. to Exclude, June 19, 2018, MDL
No. 15-2642, Docket No. 641; Def’s Reply, July 2, 2018, MDL No. 15-2642, Docket No.
651.).
Before the Court considered the Motion, however, Plaintiffs’ Leadership entered
into a Memorandum of Understanding that created a voluntary settlement program
between Plaintiffs’ and the Bayer and Merck Defendants. Accordingly, on October 11,
2018, the Court issued an Order temporarily staying the proceedings, including Bayer’s
Motion to Exclude. (Order Staying Bayer and Merck Cases, Oct. 11, 2018, MDL No. 152642, Docket No. 709.)
On January 2, 2019, in light of the voluntary settlement program, the Court issued
PTO 18, which set forth production requirements that all plaintiffs in the Bayer and Merck
cases opting not to settle under the voluntary settlement program (“Litigating Plaintiffs”)
were required to adhere to. (PTO 18 ¶ 9, Jan. 2, 2019, MDL No. 15-2642, Docket No. 758.)
Among other things, PTO 18 required Litigating Plaintiffs to produce, no later than 120
days after electing not to settle, (1) an expert report on general causation concerning the

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alleged injury/injuries; and (2) an expert report on the basis for liability concerning the
Bayer and Merck Defendants. (PTO 18 ¶ 9(f), 10(a).) PTO 18 also set forth consequences
for Litigating Plaintiffs that fail to comply: an Order to Show Cause, followed by dismissal
with prejudice. (PTO 18 ¶ 11.) Five days later, on January 7, 2019, Bayer voluntarily
withdrew its Motion to Exclude based on the settlement program and PTO 18. (Letter
Withdrawing Motions, Jan. 7, 2019, MDL No. 15-2642, Docket No. 759.)
At some point after this, the Chauvins decided not to participate in the voluntary
settlement program and became Litigating Plaintiffs subject to the requirements of PTO
18. On October 7, 2019, Bayer filed a Motion for an Order to Show Cause against
Chauvins, arguing that the Chauvins had failed to comply with PTO 18. (Mot. Order to
Show Cause, Oct. 7, 2019, Case No. 18-579, Docket No. 19.)
On October 10, 2019, the Court granted the Motion and issued an Order to Show
Cause, directing the Chauvins to (1) file proof of curing the alleged discovery deficiency;
(2) file a stipulation dismissing the Bayer and Merck Defendants with prejudice; or (3)
appear before the Court to show good cause why the Court should not dismiss the case.
(Order to Show Cause, Oct. 11, 2019, 18-579 Docket No. 23.)
On November 20, 2019, the Court held a hearing on the Order to Show Cause and
granted the Chauvins a 40-day extension—until December 30, 2019—to comply with PTO
18. (Minutes on Status Conference and Show Cause Hearing, Nov. 21, 2019, MDL No. 152642, Docket No. 943.) The parties filed additional briefing, (Case No. 18-579, Docket

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Nos. 26–27), and, on February 19, 2020, the Court held an additional Show Cause hearing
(Minutes on Status Conference and Show Cause Hearing, Feb. 19, 2020, MDL No. 15-2642,
Docket No. 981.)
DISCUSSION
The parties primarily dispute whether the Chauvins under PTO 18 or Plaintiffs’
Leadership under PTO 4 are responsible for retaining and producing general causation
and liability experts. The Chauvins argue that, because a few of the cases in the MDL have
not settled or been dismissed, Plaintiffs’ Leadership is responsible for defending Daubert
challenges against general causation and liability experts and that it is not the Chauvins’
responsibility to retain and hire these experts.
The Court disagrees.

PTO 4 directs Plaintiffs’ Leadership to make strategic

decisions for the common benefit of all plaintiffs and to defend pre-trial motions
presented to the Court on behalf of all plaintiffs. It does not require Plaintiffs’ Leadership
to defend case-specific motions and in fact preserves the right of individual plaintiffs to
act in their own self-interest. 1 Plaintiffs’ Leadership made the strategic decision to enter

At the Show Cause hearing, Counsel for the Chauvins argued vaguely that Plaintiffs’ Leadership
owed a fiduciary duty to the Chauvins to defend any Daubert motions related to general
causation and liability experts. Because the Court finds PTO 4 does not create any duty—fiduciary
or otherwise—for Plaintiffs’ Leadership to defend case-specific motions, the Chauvins’ argument
fails. See Casey v. Denton, No. 3:17-CV-00521, 2018 WL 4205153, at *4 (S.D. Ill. Sept. 4, 2018)
(noting that “[o]ne can only act in a fiduciary capacity, and thus have a fiduciary duty, to the
(footnote continued on next page)
1

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the settlement agreement for the common benefit of all plaintiffs. The Chauvins
evidently disagreed with Plaintiffs’ Leadership’s decision to settle—as is their right—and
decided to continue litigating their claims. In so doing, however, the Chauvins became
responsible for complying with PTO 18 and responding to any case-specific motions
Defendants may file. PTO 18 requires Litigating Plaintiffs to serve general causation and
liability reports on Defendants. Serving these reports necessarily entails the responsibility
of retaining the experts who prepared the reports; if it did not, Litigating Plaintiffs could
not guarantee the experts would testify at trial and therefore could not be prepared for
trial. Because the Chauvins have not retained general causation and liability experts, the
Court finds that the Chauvins have failed to comply with PTO 18. Instead of dismissing
their case with prejudice, however, the Court will grant the Chauvins 90 days from the
date of this Order retain the proper experts and to otherwise comply with PTO 18.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Plaintiffs’ must comply with PTO 18, which necessarily includes formally

retaining general causation and liability experts, within 90 days from the date of this
Order;

extent his actions comport within the boundaries set by the agreement initially creating the
relationship”).

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2.

At the expiration of that time, Defendants may renew their Motion to Show

Cause if Plaintiffs have not yet complied with PTO 18.

DATED: April 6, 2020
at Minneapolis, Minnesota.

______

______
JOHN R. TUNHEIM
Chief Judge
United States District Court

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