Dzik v. Bayer Corp., No. 16-1333 (7th Cir. 2017)Annotate this Case
In her case, consolidated for pretrial proceedings as part of multidistrict litigation, Dzik alleged that she suffered a venous thromboembolism because she used a prescription birth control pill, Yasmin. Dzik’s medical records disclosed that she last filled a Yasmin prescription 10 months before her injury. Dzik’s counsel “suggested” that her doctor had provided samples of Yasmin before Dzik suffered the VTE. In March 2014, defendants requested additional medical records or an affidavit from Dzik’s doctor substantiating her use of the drug near the time of her injury. Dzik’s counsel ignored the request for 15 months. Bayer settled other cases, prompting the court to enter a case‐management order in August 2015 that provided for automatic dismissal should any plaintiff fail to comply. Defendants notified Dzik’s counsel of their obligations under the order, but got no response. In December 2015, Bayer moved to dismiss several cases, including Dzik’s. Dzik failed to respond. In January 2016, the court dismissed her suit with prejudice. Her attorney, having taken no action for nearly two years, immediately moved (unsuccessfully) to set aside the dismissal. The Seventh Circuit affirmed, noting that affidavits submitted by Dzik’s attorneys contradicted the sworn account of defense counsel and concluding that those affidavits were “a red flag,” based on vagueness and a concession of “neglect” by the firm. The order was “crystal clear,” Dzik’s attorneys had ample time to respond to discovery, and their neglect was not excusable.