Mangino v. Bayer Healthcare Pharmaceuticals Inc. et al, No. 3:2010cv13358 - Document 7 (S.D. Ill. 2012)

Court Description: ORDER granting 6 Motion to Dismiss without prejudice. Signed by Chief Judge David R. Herndon on 5/31/2012. (dsw)
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Mangino v. Bayer Healthcare Pharmaceuticals Inc. et al Doc. 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS IN RE: YASMIN AND YAZ (DROSPIRENONE) MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION ) ) ) ) ) 3:09-md-02100-DRH-PMF MDL No. 2100 This Document Relates to: Shontay Ackerson v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10283-DRH-PMF Angie Ancheta, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al.1 No. 3:10-cv-13246-DRH-PMF Laurie Armetta v. Bayer Corp., et al. No. 3:10-cv-13502-DRH-PMF Andrea Baginski v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-12367-DRH-PMF Ashley Baker v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13883-DRH-PMF Callie Ball v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13875-DRH-PMF Jennifer Baron v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-11966-DRH-PMF Megan Berg v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-11388-DRH-PMF Crystal Boroff v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13880-DRH-PMF 1 This order applies to all plaintiffs, i.e., Angie Anchetta and Mable Hughes. 1 Dockets.Justia.com Amy Caffee v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10577-DRH-PMF Danielle Calabrese v. Bayer Corp., et al. No. 3:10-cv-13371-DRH-PMF Denise Cudney v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10617-DRH-PMF Kenyatta Davis v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-11938-DRH-PMF 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. Bayer HealthCare Pharmaceuticals, Inc., et al.2 No. 3:10-cv-13178-DRH-PMF Rebecca Franco, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al.3 No. 3:10-cv-13240-DRH-PMF Amanda Franklin v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-12831-DRH-PMF Anna Garcia, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al.4 No. 3:10-cv-13244-DRH-PMF 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. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-11946-DRH-PMF 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. 2 Ashley Handy v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10036-DRH-PMF Tiffany Hansley v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13195-DRH-PMF Kiona Harvey v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13330-DRH-PMF Donna and Robert Hill, Jr. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13596-DRH-PMF Ryann Hofmann v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10299-DRH-PMF Tammy Holmes v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10515-DRH-PMF Kathy Hutchinson v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10540-DRH-PMF Mireya and Jeff Iannuzzi v. Bayer Corp., et al. No. 3:11-cv-11100-DRH-PMF Whitney Ingram, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al.5 No. 3:11-cv-10652-DRH-PMF Kassandra Keeling v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10044-DRH-PMF Geneva Kenner v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10208-DRH-PMF 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 5 This order applies only to plaintiff Whitney Ingram. 6 This order applies only to plaintiff San Juana Elizabeth Martinez Rodriguez. 3 Brittany Lassiter v. Bayer Corp., et al. No. 3:11-cv-10563-DRH-PMF Kristy Lee, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al.7 No. 3:10-cv-13248-DRH-PMF 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. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10972-DRH-PMF Melanie Lowrey, et al. v. Bayer Corp., et al.9 No. 3:10-cv-12269-DRH-PMF Kristen Mangino v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13358-DRH-PMF Danielle Mazur v. Bayer Corp., et al. No. 3:11-cv-10255-DRH-PMF Jessica McCaslin v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10621-DRH-PMF Sondra McCoy v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-12086-DRH-PMF 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 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. 4 Ashley Moore v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10023-DRH-PMF Sarah Moseley v. Bayer Corp., et al. No. 3:11-cv-10454-DRH-PMF Tiffany Moses v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10536-DRH-PMF Clarissa Munoz v. Bayer Corp., et al. No. 3:11-cv-10519-DRH-PMF Maggie Murdock v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-11867-DRH-PMF Cynthia New v. Bayer Corp., et al. No. 3:11-cv-10485-DRH-PMF Lauren Nolasco v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-11928-DRH-PMF 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. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-12162-DRH-PMF Mandy Schaible v. Bayer Corp., et al. No. 3:11-cv-12793-DRH-PMF Michelle Simpkins, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al.11 No. 3:10-cv-13242-DRH-PMF 10 This order applies only to plaintiffs Ashley Ruby and Kristin Saenz. 11 This order applies only to plaintiff Candyce Roberts. 5 Jessica Slaats v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10284-DRH-PMF Christine Smith v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-12125-DRH-PMF Raven Smith v. Bayer Corp., et al. No. 3:11-cv-11637-DRH-PMF Ursula Smith v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13400-DRH-PMF Atara Stewart, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al.12 No. 3:10-cv-13243-DRH-PMF 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. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13879-DRH-PMF Melissa Watson v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13193-DRH-PMF Liz Westbrook, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al.13 No. 3:10-cv-13247-DRH-PMF Michelle Whiting v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10286-DRH-PMF Heather Young v. Bayer Corp., et al. No. 3:11-cv-10672-DRH-PMF 12 This order applies only to plaintiff Dalynn Dowling. 13 This order applies only to plaintiff Autumn Weatherspoon. 6 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 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-cv12213-DRH-PMF; Patricia and Geoff Gunner v. Bayer AG, et al. No. 3:10-cv-20502-DRHPMF; 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. 7 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 days18 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, 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. 8 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: 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). 9 · Plaintiffs Angie Anchetta and Mable Hughes, member action Angie Ancheta, et al. v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13246DRH-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 10 · 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 United States District Court Date: May 31, 2012 11