Case 7:13-md CS-LMS Document 3210 Filed 05/18/16 Page 1 of 8

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1 Case 7:13-md CS-LMS Document 3210 Filed 05/18/16 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X IN RE: MIRENA IUD PRODUCTS LIABILITY LITIGATION ORDER 13-MD-2434 (CS) This Document Relates to Simons v. Bayer, 15-CV x Appearances: Robert R. Luke The Luke Law Firm Houston, Texas Counsel for Plaintiff Shayna S. Cook Goldman Ismail Tomaselli Brennan & Baum, LLP Chicago, Illinois Lead Counsel for Defendants James Shepherd Shook Hardy & Bacon LLP Houston, Texas Counsel for Defendants William P. Harrington Bleakley Platt & Schmidt LLP White Plains, New York Counsel for Defendants Seibel, J. Before the Court is Plaintiff s motion to vacate the Court s January 4, 2016 Order dismissing Plaintiff s case without prejudice (13-MD-2434, Doc. 3139; 15-CV-5276, Doc. 18). Pursuant to Case Management Orders ( CMOs ) 7 and 7A, each Plaintiff is required to serve Defendants with a substantially completed Plaintiff Fact Sheet ( PFS ) within 45 days of being transferred to this multi-district litigation ( MDL ). If a Plaintiff fails to serve Defendants with

2 Case 7:13-md CS-LMS Document 3210 Filed 05/18/16 Page 2 of 8 a substantially completed PFS during that time, Defendants may send Plaintiff an Overdue Discovery Notice, and if within 30 days of that notice there is still no response, Defendants may file a motion to dismiss the case without prejudice. Plaintiffs have 90 days following the entry of an order dismissing their case without prejudice to either serve a substantially completed PFS or file a motion to vacate the Court s order. Defendants oppose this motion on the basis that Plaintiff filed a substantially completed PFS containing all core criteria and this motion to vacate more than 90 days after the entry of the Order dismissing her case without prejudice, which was entered on January 4, (Defendants Opposition to Plaintiff s Motion to Vacate ( Ds Opp. ), (Doc. 3147).) Plaintiff replied to Defendant s opposition on April 29, 2016, arguing the case should not be dismissed because Plaintiff misunderstood the requirements for healthcare provider authorizations but had not acted in bad faith in delaying service of a completed PFS. (Plaintiff s Reply to Defendants Opposition to Motion to Vacate ( P s Reply ), (Doc. 3158).) On May 6, 2016, Defendants filed a sur-reply further arguing why Plaintiff s case should be dismissed. (Defendants Sur-Reply to Plaintiff s Reply ( Ds Sur-Reply ), (Doc. 3177).) On May 16, 2016, Plaintiff filed a response to Defendants sur-reply, further arguing why her case should be reinstated. (Plaintiff s Response to Ds Sur-Reply ( P s Resp. ), (Doc. 3206).) In the meantime, Defendants moved to dismiss Plaintiff s case with prejudice on April 29, (Doc ) On May 4, 2016, Plaintiff filed a letter in opposition to Defendants motion, (Doc. 3171), requesting that the Court deny Defendant s motion for the same reasons outlined in her April 29, 2016 letter. Plaintiff missed many deadlines leading up to this motion to vacate, and although Plaintiff repeatedly tried to cure deficiencies in her PFS, this does not absolve her of her obligations under CMOs 7 and 7A to produce a substantially completed PFS within the agreed- 2

3 Case 7:13-md CS-LMS Document 3210 Filed 05/18/16 Page 3 of 8 upon and Court-mandated time period. Plaintiff was initially required to serve Defendants with a completed PFS by August 22, According to Defendants, on July 30, 2015 Plaintiff produced a PFS but it was deficient in core criteria and other areas. (Ds Opp. at 1.) On September 24, 2015, Defendants sent Plaintiff a letter identifying the missing core and non-core criteria. (Id. Ex. A.) On October 7, 2015, Plaintiff submitted another deficient PFS that did not provide all of the required core criteria, and Defendants sent Plaintiff two additional letters on November 4, 2015 and December 22, 2015 broadly identifying the missing core criteria. 1 (Id. Exs. B, C.) On November 30, 2015, Defendants moved to dismiss Plaintiff s case without prejudice for failure to produce a PFS containing all core criteria in compliance with CMOs 7 and 7A, (Doc. 2795). Plaintiff did not oppose, and on January 4, 2016, the Court granted this motion, and dismissed Plaintiff s case without prejudice, (Doc. 2925). The Order stated: [T]he Plaintiffs in the table below have 90 days following the entry of this Order to serve Defendants with a completed Plaintiff Fact Sheet i.e. a Plaintiff Fact Sheet containing all core criteria or move to vacate the dismissal without prejudice. If Plaintiffs have not taken either of the above steps within 90 days, this Order will be converted into a Dismissal with Prejudice upon Defendants motion. (Id.) Plaintiff was required to serve a completed PFS on or before April 4, to avoid dismissal with prejudice. On March 21, 2016 Plaintiff provided another amended PFS, which lacked certain required health authorizations. 1 In their November 4, 2015 letter, Defendants directed Plaintiff to provide correctly addressed authorizations in Exhibit A for the release of health information for each healthcare provider identified in the PFS. (Ds Opp. Ex. B.) In the December 22, 2015 letter, Defendants informed Plaintiff that she had failed to provide addressed authorizations for the release of health information in Exhibit A for each healthcare provider identified in the PFS. (Id. Ex. C.) 2 Defendants state that the 90-day deadline expired on April 3, (Ds Opp. at 2.) April 3, 2016, however, was a Sunday, and according to Federal Rule of Civil Procedure ( FRCP ) 6(a)(1)(C), in computing a time period specified by court order, if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. Because April 3, 2016 was a Sunday, the deadline for Plaintiff to submit a completed PFS expired on Monday, April 4,

4 Case 7:13-md CS-LMS Document 3210 Filed 05/18/16 Page 4 of 8 On April 12, 2016, Defendants notified the Plaintiffs Steering Committee ( PSC ) that they intended to move to dismiss Plaintiff s claims with prejudice for failure to provide all core criteria. (Ds Opp. Ex. D.) On April 15, 2016, Plaintiff filed this Motion to Vacate her dismissal without prejudice, (Doc. 3139). Plaintiff stated in her motion to vacate that she had submitted a Plaintiff Fact Sheet and authorizations on March 21, 2016, within 90 days of the deadline, and requested that the Court vacate the Order dismissing her case. (Id.) The March 21, 2016 PFS was incomplete, however, and it was not until April 19, 2016 that Plaintiff provided all missing core criteria. (Ds Opp. Ex. E.) Plaintiff s counsel acknowledged in an to Defendants that certain HIPAA (Health Insurance Portability and Accountability Act) authorization forms had been missing up until that date. (Id.) Plaintiff argues that although she inadvertently did not include HIPAA authorizations with the addresses of pharmacies Plaintiff used, (P s Reply at 1), because she did not realize that pharmacies were to be included as healthcare providers, (id. at 7), Plaintiff was not aware that her PFS was deficient over many months without these addresses, (id. at 5-6), and in any event she had provided Defendants with the names and addresses in discovery responses and Defendants could have transcribed the addresses onto the blank authorization forms Plaintiff had provided, (id.). Plaintiff s arguments are unpersuasive. As the Court has previously noted, although it is unfortunate to dismiss a case before it has been decided on the merits, the deadlines imposed in this litigation are essential in managing the docket of such a large, complex case, see In re World Trade Ctr. Disaster Site Litig., 722 F.3d 483, 487 (2d Cir. 2013) (per curiam), and the Court has great discretion in situations where plaintiffs fail to comply with case management orders. See In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867 (8th Cir. 2007) ( MDL courts must be given greater discretion to organize, coordinate and adjudicate its 4

5 Case 7:13-md CS-LMS Document 3210 Filed 05/18/16 Page 5 of 8 proceedings, including the dismissal of cases for failure to comply with its orders. ); In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1232 (9th Cir. 2006) ( [M]ultidistrict litigation is a special breed of complex litigation where the whole is bigger than the sum of its parts. The district court needs to have broad discretion to administer the proceeding as a whole, which necessarily includes keeping the parts in line. ). The parties agreed to the deadlines set forth in CMO 7, and both sides will be held to them. 3 The Court ordered these self-executing provisions calling for dismissal (as proposed by the parties) precisely because individual consideration of the subjective understanding of scores or hundreds 3 Although CMOs 7 and 7A call for dismissal, I find the result to be the same under FRCP 37. FRCP 37(b)(2) gives courts discretion to dismiss[] the action or proceeding in whole or in part if a party fails to obey an order to provide or permit discovery. Courts use the following factors to determine whether dismissal is warranted under FRCP 37: (1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of... noncompliance. Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (alteration in original) (internal quotation marks omitted). Courts also look at whether dismissal would deter those who might be tempted to such conduct in the absence of such a sanction, id. at 303 (internal quotation marks omitted), and whether prejudice [was] suffered by the movant. Local Union No. 40 of the Int l Ass n of Bridge v. Car-Win Const., 88 F. Supp. 3d 250, 262 (S.D.N.Y. 2015). Although the Court does not believe that Plaintiff was acting in bad faith by repeatedly submitting an insufficient PFS, it was within Plaintiff s or her counsel s control to submit a completed PFS on time, and Plaintiff was provided several opportunities and repeated reminders informing her that the PFS was incomplete. Plaintiff was also aware of the consequences of noncompliance because the Court s January 4 Order warned that Plaintiff s case would be dismissed if she failed to comply. The noncompliance lasted from August until April, during which period Plaintiff had ample time to cure the deficiencies in the PFS. While a lesser sanction might suffice in an ordinary case, in a large MDL an easily administered and clear sanction is required which is why CMOs 7 and 7A give so many opportunities to cure before dismissal. Dismissal is a strong deterrent, especially in the context of a large MDL with many cases pending. Plaintiff s delay has also prejudiced Defendants because the parties agreed to the governing timetables so that this case and the hundreds of other cases that are part of this MDL can be properly and expeditiously administered. Moreover, [p]rejudice from unreasonable delay is presumed, and [f]ailure to produce documents as ordered is sufficient prejudice, whether or not there is belated compliance. In re Phenylpropanolamine (PPA) Products Liab. Litig., 460 F.3d at Accordingly, weighing the relevant factors under FRCP 37, I find dismissal appropriate in this context. Plaintiff argues that because she did not act in bad faith in failing to comply, dismissal is not appropriate. (P s Resp. at 3.) But bad faith is not required. Vaigasi v. Solow Mgmt. Corp., No. 11-CV-5088, 2016 WL , at *19 (S.D.N.Y. Feb. 16, 2016). Dismissal under Rule 37 is warranted where a party fails to comply with the court s discovery orders willfully, in bad faith, or through fault. Mahon v. Texaco Inc., 122 F. App x 537, 538 (2d Cir. 2005) (summary order) (internal quotation marks omitted). This means that dismissal might not be warranted where there was an inability to comply, but fault clearly encompasses gross professional negligence, an example of which is an attorney s failure to meet court ordered discovery deadlines. Sec. Inv r Prot. Corp. v. Memme & Co., Inc., 17 B.R. 419, 423 (S.D.N.Y. 1981) (citing Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1068 (2d Cir. 1979)). Counsel s failure to inquire exactly what was deficient in the PFS, after receiving numerous notifications, until after the deadline had passed shows fault on the part of Plaintiff. 5

6 Case 7:13-md CS-LMS Document 3210 Filed 05/18/16 Page 6 of 8 of defaulting plaintiffs or their counsel would not be practicable. Although Plaintiff s counsel is not on the PSC that negotiated the relevant CMOs, (P s Resp. at 4), every plaintiff in this litigation is bound by these orders. It is each lawyer s duty to familiarize him or herself with the CMOs and what they require, and if unsure, counsel should have reached out to a member of the PSC for further clarity at some point over the many months that this issue has been pending. The procedures set forth in CMO 7 are very generous, giving plaintiffs more than adequate time and notice to comply with its requirements. Plaintiff now partially blames Defendants for failing to tell her specifically which portion of the PFS or authorizations was missing and for failing to fill in the authorizations with information in Defendants possession. (P s Reply at 5-7.) It is Plaintiff s burden, however, not Defendants, to see to it that a compliant PFS is submitted. Moreover, as a litigant in this case, Plaintiff had an obligation to familiarize herself with the requirements set forth in CMOs 7 and 7A. They direct plaintiffs to provide addressed Authorizations for each health care provider identified in the PFS, (CMO 7, (Doc. 263), at 3), which should have sufficed for Plaintiff to know that she was required to provide authorizations with the provider s address filled in. 4 This language cannot, as Plaintiff suggests, reasonably be interpreted to refer to a plaintiff s address, and hundreds of other plaintiffs in this action have not interpreted it as such. 5 The CMOs further explain that pharmacies are healthcare 4 Moreover, given that Defendants November 4, 2015 letter explained that Plaintiff needed to provide correctly addressed authorizations and place the name and address of the provider in Section 7 of each authorization, (Ds Opp. Ex. B), it is hard to imagine that Plaintiff did not understand this obligation. 5 Plaintiff notes, (P s Resp. at 5), that counsel for several other Plaintiffs also misinterpreted the requirements for the healthcare provider authorizations. (See Doc. 3204). The lawyer in question indeed provided some signed, providerspecific authorizations and some blank authorizations, but upon learning that Defendants considered his clients PFSs to be incomplete, he immediately contacted Defendants counsel to determine the nature of the problem and address it. (Id.) Even if he had not, however, his mistake would not alter the analysis. It is up to every plaintiff that is a part of this litigation to fully understand and comply with the Court s Orders. 6

7 Case 7:13-md CS-LMS Document 3210 Filed 05/18/16 Page 7 of 8 providers. (CMO 7, Ex. 1 2.) 6 Finally, Section IV, Paragraph 13 of CMO 7 lists the portions of a PFS that Defendants are able to fill in if an incomplete authorization is submitted, and the address of healthcare providers, including pharmacies, is not listed. (Ds Sur-Reply at 5; CMO 7 at 4.) In short, Plaintiff had all the information she needed to comply, but failed to do so. Moreover, Plaintiff was aware that her PFS was repeatedly deemed deficient, but did not pick up the phone or shoot off an to Bayer s counsel or the PSC to determine the nature of the deficiency or how it could be cured. Nor has she explained why, if she believed she was in compliance, she failed to oppose the motion to dismiss without prejudice. Given that Plaintiff had notice that failure to comply with CMOs 7 and 7A would result in dismissal, that Plaintiff failed to submit a substantially completed PFS that included all core criteria as defined by CMO 7A within the required time period, and that the sanction of dismissal was agreed by both parties to this litigation, the Court finds dismissal unfortunate but necessary in Plaintiff s case. Accordingly, because Plaintiff did not serve a substantially completed PFS within 90 days from the Court s Order dismissing her case without prejudice, Plaintiff s Motion to Vacate, (13-MD-2434, Doc. 3139; 15-CV-5276, Doc. 18), is hereby DENIED. 7 Defendants Motion to Dismiss Plaintiff s case with prejudice, (Doc. 3161), is hereby GRANTED as to the abovecaptioned Plaintiff. The Clerk of Court is respectfully requested to spread this Order to the case 6 Plaintiff argues that any delay in obtaining the pharmacy records was not material. (P s Reply at 9.) This argument, however, is at odds with the purpose of CMO 7A, which lists agreed-upon core criteria of a PFS, and which includes [f]ully and properly executed medical and insurance authorizations pursuant to SECTION XIV [of CMO 7]. (CMO 7A, (Doc. 918).) As the Court has previously noted, the criteria listed in CMO 7A are deemed core, and a PFS is not substantially complete without this material. See Wade v. Bayer, No. 14-CV-2886, (Doc. 2658), at 1 n.1 ( [N]one of the core criteria identified in CMO 7A can be considered minor or unimportant. ). 7 Plaintiff s request for oral argument, (P s Reply at 2), regarding this issue is also denied. The matter has been adequately briefed through the parties submissions and therefore there is no need for an oral hearing. 7

8 Case 7:13-md CS-LMS Document 3210 Filed 05/18/16 Page 8 of 8 in the caption, to terminate the pending motions at 15-CV-5276, Doc. 18 and 13-MD-2434, Doc. 3139, and to close No. 15-CV SO ORDERED. Dated: May 18, 2016 White Plains, New York CATHY SEIBEL, U.S.D.J. 8

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