Smith v. Bayer Corporation, 3:11-cv-11637

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3:11-cv-11637 | S.D. Ill. | Jun 1, 2012

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS

) IN RE: Y ASMIN AND YAZ (D ROSPIRENONE ) ) 3:09-md-02100-DRH-PMF M ARKETING , S ALES P RACTICES AND P RODUCTS ) L IABILITY L ITIGATION ) MDL No. 2100

) This Document Relates to: Shontay Ackerson v. No. 3:11-cv-10283-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Angie Ancheta, et al. v. No. 3:10-cv-13246-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. ^[1] Laurie Armetta v. Bayer Corp., et al. No. 3:10-cv-13502-DRH-PMF Andrea Baginski v. No. 3:11-cv-12367-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Ashley Baker v. No. 3:10-cv-13883-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Callie Ball v. No. 3:10-cv-13875-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Jennifer Baron v. No. 3:11-cv-11966-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Megan Berg v. No. 3:11-cv-11388-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Crystal Boroff v. No. 3:10-cv-13880-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Amy Caffee v. No. 3:11-cv-10577-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Danielle Calabrese v. Bayer Corp., et al. No. 3:10-cv-13371-DRH-PMF Denise Cudney v. No. 3:11-cv-10617-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Kenyatta Davis v. No. 3:11-cv-11938-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Katie Donaldson v. Bayer Corp., et al. No. 3:11-cv-10486-DRH-PMF Rochelle Dougherty v. Bayer Corp., et al. No. 3:10-cv-11502-DRH-PMF Kaci Douglass v. Bayer Corp., et al. No. 3:11-cv-10487-DRH-PMF Kari Emery v. Bayer Corp., et al. No. 3:11-cv-10361-DRH-PMF Angel Ferrell, et al. v. No. 3:10-cv-13178-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. ^[2] Rebecca Franco, et al. v. No. 3:10-cv-13240-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. ^[3] Amanda Franklin v. No. 3:11-cv-12831-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Anna Garcia, et al. v. No. 3:10-cv-13244-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. ^[4] Heather Gibson v. Bayer Corp., et al. No. 3:11-cv-10654-DRH-PM Kirsten Goodlett v. Bayer Corp., et al. No.3:11-cv-10610-DRH-PMF Melissa Gortney v. No. 3:11-cv-11946-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Ashley Handy v. No. 3:11-cv-10036-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Tiffany Hansley v. No. 3:10-cv-13195-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Kiona Harvey v. No. 3:10-cv-13330-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Donna and Robert Hill, Jr. v. No. 3:10-cv-13596-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Ryann Hofmann v. No. 3:11-cv-10299-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Tammy Holmes v. No. 3:11-cv-10515-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Kathy Hutchinson v. No. 3:11-cv-10540-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Mireya and Jeff Iannuzzi v. Bayer Corp., et al. No. 3:11-cv-11100-DRH-PMF Whitney Ingram, et al. v. No. 3:11-cv-10652-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. ^[5] Kassandra Keeling v. No. 3:11-cv-10044-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Geneva Kenner v. No. 3:11-cv-10208-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Michelle Kielman v. Bayer Corp., et al. No. 3:10-cv-13795-DRH-PMF Debbie Knight, et al. v. Bayer Corp., et al. ^[6] No. 3:10-cv-12903-DRH-PMF Kara Kozaklewicz v. Bayer Corp., et al. No. 3:11-cv-11481-DRH-PMF Brittany Lassiter v. Bayer Corp., et al. No. 3:11-cv-10563-DRH-PMF Kristy Lee, et al. v. No. 3:10-cv-13248-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. ^[7] Lauren and Andrew Lieb v. Bayer Corp., et al. No. 3:11-cv-20091-DRH-PMF Carley Lockhart v. Bayer Corp., et al. No. 3:11-cv-10609-DRH-PMF Melanie Lonczak v. Bayer Corp., et al. No. 3:11-cv-12753-DRH-PMF Angelica Lopez, et al. v. Bayer Corp., et al. ^[8]

No. 3:10-cv-12941-DRH-PMF Angela Lorinchak v. No. 3:11-cv-10972-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Melanie Lowrey, et al. v. Bayer Corp., et al. ^[9] No. 3:10-cv-12269-DRH-PMF Kristen Mangino v. No. 3:10-cv-13358-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Danielle Mazur v. Bayer Corp., et al. No. 3:11-cv-10255-DRH-PMF Jessica McCaslin v. No. 3:11-cv-10621-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Sondra McCoy v. No. 3:11-cv-12086-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Siobhan McGee v. Bayer Corp., et al. No. 3:11-cv-12797-DRH-PMF Mallory McGlothin v. Bayer Corp., et al. No. 3:10-cv-13567-DRH-PMF Brittany McKenrick v. Bayer Corp., et al. No. 3:11-cv-10488-DRH-PMF Annaliza Mendoza v. Bayer Corp., et al. No. 3:10-cv-13230-DRH-PMF Ashley Moore v. Bayer HealthCare No. 3:11-cv-10023-DRH-PMF Pharmaceuticals, Inc., et al. Sarah Moseley v. Bayer Corp., et al. No. 3:11-cv-10454-DRH-PMF Tiffany Moses v. No. 3:11-cv-10536-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Clarissa Munoz v. Bayer Corp., et al. No. 3:11-cv-10519-DRH-PMF Maggie Murdock v. No. 3:11-cv-11867-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Cynthia New v. Bayer Corp., et al. No. 3:11-cv-10485-DRH-PMF Lauren Nolasco v. No. 3:11-cv-11928-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Kathleen Nold v. Bayer Corp., et al. No. 3:11-cv-12795-DRH-PMF Monica Ortiz v. Bayer Corp., et al. No. 3:11-cv-10418-DRH-PMF Vanessa Palomo v. Bayer Corp., et al. No. 3:11-cv-10065-DRH-PMF Jessica Rios v. Bayer Corp., et al. No. 3:11-cv-11008-DRH-PMF Joanne Roberts v. Bayer Corp., et al. No. 3:10-cv-12965-DRH-PMF Marsha Rucker v. Bayer Corp., et al. No. 3:11-cv-10270-DRH-PMF Kristin Saenz, et al. v. Bayer Corp., et al. ^[10]

No. 3:10-cv-12977-DRH-PMF Theresa Samms v. No. 3:11-cv-12162-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Mandy Schaible v. Bayer Corp., et al. No. 3:11-cv-12793-DRH-PMF Michelle Simpkins, et al. v. No. 3:10-cv-13242-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. ^[11] Jessica Slaats v. No. 3:11-cv-10284-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Christine Smith v. No. 3:11-cv-12125-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Raven Smith v. Bayer Corp., et al. No. 3:11-cv-11637-DRH-PMF Ursula Smith v. No. 3:10-cv-13400-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Atara Stewart, et al. v. No. 3:10-cv-13243-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. ^[12] Kyrsten Unger v. Bayer Corp., et al. No. 3:11-cv-10210-DRH-PMF Kristen Vaughn, a minor, by her mother, Jacqeline No. 3:10-cv-11812-DRH-PMF Vaughn, and Jacqeline Vaughn, individually v. Bayer Corp., et al. Janelle Wade v. Bayer Corp., et al. No. 3:10-cv-11693-DRH-PMF Rachel Warner v. No. 3:10-cv-13879-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Melissa Watson v. No. 3:10-cv-13193-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Liz Westbrook, et al. v. No. 3:10-cv-13247-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. ^[13] Michelle Whiting v. No. 3:11-cv-10286-DRH-PMF Bayer HealthCare Pharmaceuticals, Inc., et al. Heather Young v. Bayer Corp., et al. No. 3:11-cv-10672-DRH-PMF

ORDER

DISMISSING WITHOUT PREJUDICE This matter is before the Court on the Bayer defendants motion, pursuant to Case Management Order 12 (“CMO 12”), ^[14] for an Order dismissing plaintiffs’ claims in the above-captioned matters without prejudice for failure to comply with their Plaintiff Fact Sheet (“PFS”) obligations. ^[15]

Under Section C of CMO 12, each plaintiff is required to serve Defendants with a completed PFS, including a signed Declaration, executed record release Authorizations, and copies of all documents subject to the requests for production contained in the PFS which are in the possession of plaintiff. Section B of CMO 12 further provides that a completed PFS is due “45 days from the date of service of the first answer to her Complaint or the docketing of her case in this MDL, or 45 days from the date of this Order, whichever is later.”

Accordingly, plaintiffs in the above-captioned matters were to have served completed PFSs on or before January 22, 2012 ( See Ackerson 3:11-10283 Doc. 8-1). ^[16] Per Section E of CMO 12, Notice of Overdue Discovery was sent on or before February 17, 2012. ( See Ackerson 3:11-10283 Doc. 8-2). Thus, as of today’s date, the plaintiffs in the above captioned matters are more than four months late in completing their PFS requirements. ^[17]

Under Section E of CMO 12, plaintiffs were given 14 days ^[18] from the date of Bayer’s motion , in this case 14 days from March 13, 2012, to file a response either certifying that they served upon defendants and defendants received a completed PFS, and attaching appropriate documentation of receipt or an opposition to defendant’s motion. ^[19]

To date, none of the plaintiffs in the above captioned member actions has filed a response. Because the plaintiffs have failed to respond to Bayer’s allegations, the Court finds that these plaintiffs have failed to comply with their PFS obligations under CMO 12. Accordingly, the claims of the above captioned plaintiffs are hereby dismissed without prejudice.

The Court reminds plaintiffs that, pursuant to CMO 12 Section E, unless plaintiffs serve defendants with a COMPLETED PFS or move to vacate the dismissal without prejudice within 60 days after entry of this Order, the Order will be converted to a Dismissal With Prejudice upon defendants’ motion .

In accordance with this order of dismissal without prejudice, the Court instructs the Clerk of the Court to terminate the claims of the following plaintiffs: · Plaintiffs Angie Anchetta and Mable Hughes, member action Angie Ancheta, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13246-

DRH-PMF

· Plaintiff Elizabeth Muldoon, member action Angel Ferrell, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13178-DRH-PMF · Plaintiff Elizabeth Luginbyhl, member action Rebecca Franco, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13240 · Plaintiff Anna Garcia, member action Anna Garcia, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13244-DRH-PMF · Plaintiff Whitney Ingram, member action Whitney Ingram, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10652-DRH-PMF · Plaintiff San Juana Elizabeth Martinez Rodriguez, member action Debbie Knight, et al. v. Bayer Corp., et al No. 3:10-cv-12903-DRH-PMF · Plaintiff Anna Mauldin, member action Kristy Lee, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13248-DRH-PMF · Plaintiffs Kristi Hammett and Angelica Lopez, member acction Angelica Lopez, et al v. Bayer Corp., et al. No. 3:10-cv-12941-DRH-PMF · Plaintiff Daniell Smith, member action Melanie Lowrey, et al. v. Bayer Corp., et al. No. 3:10-cv-12269-DRH-PMF · Plaintiffs Ashley Ruby and Kristin Saenz, member action Kristen Saenz, et al. v. Bayer Corp., et al. 3:10-cv-12977-DRH-PMF · Plaintiff Candyce Roberts, member action Michelle Simpkins, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13242-DRH-PMF · Plaintiff Dalynn Dowling, member action Atara Stewart, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13243-DRH-PMF · Plaintiff Autumn Weatherspoon, member action Liz Westbrook, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13247-DRH-PMF As to the remaining member actions, the Court instructs the Clerk of the Court

to close each action.

SO ORDERED

David R. Herndon

2012.05.31

14:46:54 -05'00'

Chief Judge

Date: May 31, 2012

United States District Court

NOTES

[1] This order applies to all plaintiffs, i.e., Angie Anchetta and Mable Hughes.

[2] This order applies only to plaintiff Elizabeth Muldoon.

[3] This order applies only to plaintiff Elizabeth Luginbyhl.

[4] This order applies only to plaintiff Anna Garcia.

[5] This order applies only to plaintiff Whitney Ingram.

[6] This order applies only to plaintiff San Juana Elizabeth Martinez Rodriguez.

[7] This order applies only to plaintiff Anna Mauldin.

[8] This order applies only to plaintiffs Kristi Hammett Amador and Angelica Lopez.

[9] This order applies only to plaintiff Danielle Smith.

[10] This order applies only to plaintiffs Ashley Ruby and Kristin Saenz.

[11] This order applies only to plaintiff Candyce Roberts.

[12] This order applies only to plaintiff Dalynn Dowling.

[13] This order applies only to plaintiff Autumn Weatherspoon.

[14] The Parties negotiated and agreed to CMO 12, which expressly provides that the discovery required of plaintiffs is not objectionable. CMO 12 § A(2).

[15] Defendants also sought dismissal of the following member actions: Julie Bell, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al No. 3:11-cv-12562-DRH-PMF; Linda and Harry Deppe v. Bayer Pharmaceuticals Corp., et al. No. 3:11-cv-10937-DRH-PMF; Dayna DiCarlo v. Bayer Corp., et al. No. 3:11-cv-12417-DRH-PMF; Jenna Gilbertson v. Bayer Corp., et al. No. 3:11-cv-12044-DRH-PMF; Gretchen Gilliland v. Bayer Corp., et al. No. 3:11-cv-10052-DRH-PMF; Courtney Graham v. Bayer Corp., et al. No. 3:11-cv- 12213-DRH-PMF; Patricia and Geoff Gunner v. Bayer AG, et al. No. 3:10-cv-20502-DRH- PMF ; Dolores Gutierrez-Pasillas v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10757-DRH-PMF; Cara Kruse v. Bayer Corp., et al. No. 3:11-cv-11890-DRH-PMF; Nicole Smith v. Bayer Corp., et al. No. 3:11-cv-12410-DRH-PMF; Garrie Storie v. Bayer Corp., et al. No. 3:11-cv-12214-DRH-PMF; Colette Thom-October and Marvin October v. Bayer Corp., et al. No. 3:11-cv-12228-DRH-PMF; Lisa Winger v. Bayer Corp., et al. No. 3:11-cv-12119-DRH-PMF . In these actions, however, the subject plaintiffs subsequently provided completed PFSs and/or defendants withdrew the motions to dismiss. In addition, defendants sought dismissal of the following member action: Jennifer Cruz v. Bayer Corp., et al. No. 3:11-cv-12750-DRH-PMF. The parties subsequently filed stipulations of dismissal in this member action. Accordingly, the motion to dismiss is now moot. Finally, defendants’ motion to dismiss seeks dismissal of plaintiff Laurie Nenadovich in member action Natasha Haley, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-12892-DRH-PMF. In this action, however, the Court has granted plaintiff Nenadovich an extension of time to respond. The extension has not yet expired, accordingly the subject motion is not yet ripe.

[16] Identical motions were filed in each of the above captioned cases. For ease of reference the Court refers to the motion and exhibits filed in Ackerson v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10283-DRH-PMF (Docs 8, 8-1, & 8-2).

[17] Bayer reports that it received some medical records for plaintiff Amanda Franklin, Case No. 3:11-cv-12831, on February 16, 2012, but it had not received her PFS or other required disclosures. Providing some medical records does not constitute compliance with CMO 12. Accordingly, plaintiff Amanda Franklin’s action is subject to dismissal.

[18] In two member actions, Vaughn et al., v. Bayer Corp. et al. No. 3:10-cv-11812 and Iannuzzi v. Bayer Corp., et al. No. 3:11-cv-11100, the Court granted plaintiffs a 14-day extension ( Vaughn Doc. 14; Iannuzzi Doc. 13). Plaintiffs had until April 10, 2012 to comply with their PFS requirements ( Vaughn Docs 12 & 14; Iannuzzi Docs 12 & 13). To date, plaintiffs have not filed anything with the Court indicating that they are now in compliance with their PFS obligations. Accordingly, these cases are subject to dismissal pursuant to CMO 12.

[19] Responses to Bayer’s motion to dismiss were due 14 days from March 13, 2012 regardless of any response date automatically generated by CM/ECF. The Court has previously noted in orders in this MDL and during a status conference in this MDL that when deadlines provided by CM/ECF conflict with orders of this Court, the Court ordered deadline will always control . See United States District Court for the Southern District of Illinois, Electronic Filing Rules, Rule 3 (The “filer is responsible for calculating the response time under the federal and/or local rules. The date generated by CM/ECF is a guideline only, and, if the Court has ordered the response to be filed on a date certain, the Court's order governs the response deadline.”). The deadlines provided by CM/ECF are generated automatically based on the generic responsive pleading times allowed under the rules and do not consider special circumstances (such as court orders specific to a particular case or issue).