Catanese v. AbbVie Inc

CourtDistrict Court, N.D. Illinois
DecidedNovember 15, 2018
Docket1:15-cv-07494
StatusUnknown

This text of Catanese v. AbbVie Inc (Catanese v. AbbVie Inc) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Catanese v. AbbVie Inc, (N.D. Ill. 2018).

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

In re: Testosterone Replacement ) Therapy Products Liability Litigation ) Case No. 14 C 1748 Coordinated Pretrial Proceedings ) MDL No. 2545 ) This document applies to Case Nos.: ) 14 C 4256, 14 C 4527, 14 C 8927, 14 C 9141, ) 14 C 10137, 15 C 3512, 15 C 3823, ) 15 C 3858, 15 C 5819, 15 C 6327, 15 C 6330, ) 15 C 7412, 15 C 7423, 15 C 7445, 15 C 7494, ) 15 C 7569, 15 C 7589, 15 C 7956, ) 15 C 10379, 16 C 0298, 16 C 1834, ) 16 C 2206, 16 C 2369, 16 C 2657, 16 C 2703, ) 16 C 2987, 16 C 2993, 16 C 4407, 16 C 6440, ) 16 C 7172, 16 C 7230, 16 C 8319, ) 16 C 10185, 16 C 11267, 17 C 0727, ) 17 C 1188, 17 C 1778, 17 C 4099, 17 C 7522 )

CASE MANAGEMENT ORDER NO. 140 (Memorandum Opinion and Order on thirty-nine plaintiffs' motions for relief from dismissals with prejudice pursuant to Case Management Order No. 118)

MATTHEW F. KENNELLY, District Judge: Plaintiffs in this multidistrict litigation (MDL) proceeding allege that they suffered either arterial cardiovascular injuries or injuries related to blood clots in the veins as a result of taking prescription testosterone replacement therapy (TRT) drugs. Defendants—AbbVie, Inc., Actavis, Inc., Auxilium Pharmaceuticals, Inc., Eli Lilly & Company, Endo Pharmaceuticals, Inc., GlaxoSmithKline, LLC, and affiliated entities— are manufacturers of TRT drugs. More than 7,800 individual cases have been filed in the MDL, and a little under 6,000 remain pending. On May 11, 2018, the Court dismissed more than 150 cases with prejudice after plaintiffs in those cases failed to (1) comply with a case management order setting forth certain discovery obligations and (2) respond to an order to show cause why their cases should not be dismissed with prejudice due to the noncompliance. Thirty-nine plaintiffs have filed motions for relief from that order and have asked the Court to reinstate their cases. For the following reasons, the Court grants thirty-seven plaintiffs' motions and

denies two. Background

Case Management Order No. 9 (CMO 9), which has been in effect since October 2014, requires all plaintiffs in the MDL to, among other things, complete a plaintiff fact sheet (PFS), serve it on defendants, produce to defendants all responsive, non- privileged documents in their possession that the PFS requests, and provide executed authorizations for the release of certain medical records. The PFS requests information that is highly relevant to the resolution of a plaintiff's claims, such as identification of TRT products the plaintiff used, the plaintiff's prescribing physicians, the pharmacies that dispensed plaintiff's TRT products, dispensation dates, plaintiff's medical history, records regarding the specific injury or injuries plaintiff allegedly suffered as a result of using TRT products, and details regarding whether and when plaintiff saw, heard, or read TRT-related advertisements or other information. In December 2017, the Court issued Case Management Order No. 85 (CMO 85), which required all plaintiffs in the MDL to supplement and update their PFS with a submission called a supplemental plaintiff profile form (PPF). The PPF requires disclosure of, among other things, detailed information regarding, among other things, the particular TRT product(s) the plaintiff used; the pharmacy or pharmacies from which the plaintiff obtained it; the dates of usage; any gaps in usage; the nature and date of the plaintiff's injury claimed to be caused by a TRT product; details regarding written product information the plaintiff received; and details regarding TRT advertisements the plaintiff saw. In addition, the PPF requires the plaintiff to produce relevant records, including pharmacy records, regarding the dispensation to and use by the plaintiff of any

TRT product and medical records documenting the plaintiff's claimed TRT-related injuries. The Court imposed the requirement for submission of a PPF to ensure the disclosure of relevant information needed for the preparation and litigation of the thousands of cases remaining in the MDL, as well as their ultimate resolution by settlement, ruling on a dispositive motion, remand to the appropriate transferor district, or trial before this Court. CMO 85 gave each plaintiff a reasonable time—90 days—to submit a substantially complete PPF. CMO 85 further provided as follows: C. Should any Plaintiff fail to serve an executed PPF or if a Defendant deems a Plaintiff's PPF deficient, Defendant's counsel shall notify the Court of the alleged deficiency and the Court shall issue an "Order To Show Cause Why the Case Should Not Be Dismissed and/or Sanctions Ordered." Plaintiff's counsel shall have twenty-one (21) days to respond to said Order To Show Cause, which includes the ability to cure the alleged discovery deficiency. There shall be no imposition of a sanction for any plaintiff who cures a deficiency following issuance of an Order to Show Cause.

D. If the Plaintiff fails to show cause within 21 days of entry of the Court's Order To Show Cause, the Court may dismiss the Plaintiff's case with prejudice, or impose another appropriate sanction.

CMO 85, ¶ III.B-C.

On May 11, 2018, the Court dismissed more than 150 cases with prejudice after defendants identified PPF deficiencies in those cases; the Court issued a show-cause order to those plaintiffs as provided in CMO 85; and the plaintiffs failed to provide any response whatsoever to the show-cause order by the specified deadline. See CMO 118 at 1-3. The Court entered judgment of dismissal with prejudice in those cases on May 14, 2018. Thirty-six plaintiffs filed motions for relief from the Court's order within twenty- eight days after the entry of judgment, most of them immediately after entry of

judgment. The Court held a hearing on those motions on May 31, 2018. Three plaintiffs filed motions for relief after the hearing and more than twenty-eight days after the entry of judgment. Legal Standards

"[W]hether a motion filed within [twenty-eight] days of the entry of judgment should be analyzed under Rule 59(e) or Rule 60(b) depends on the substance of the motion, not on the timing or label affixed to it." Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008). "When the substance and label of a post-judgment motion filed within [twenty-eight] days of judgment are not in accord, district courts should evaluate it 'based on the reasons expressed by the movant.'" Id. (quoting Jennings v. Rivers, 394 F.3d 850, 855 (10th Cir. 2005)); see also Ho v. Taflove, 648 F.3d 489, 495 n.5 (7th Cir. 2011) (construing motion styled under Rule 60(b) as a Rule 59(e) motion because "the substance of the motion"—including that plaintiff sought reconsideration in part due to errors of law—"reveals that it is a Rule 59(e) motion," and because it was filed within the time allowed under Rule 59(e)); Robinson v. Bandy, 524 F. App'x 302, 304 (7th Cir. 2013). On the other hand, "[w]hen a motion is filed more than 28 days after the entry of judgment, whether the movant calls it a Rule 59(e) motion or a Rule 60(b) motion," a court "treat[s] it as a Rule 60(b) motion." Banks v. Chicago Bd. of Educ., 750 F.3d 663, 666 (7th Cir. 2014). A. Federal Rule of Civil Procedure 59(e) "A motion to alter or amend a judgment must be filed no later than 28 days after

the entry of judgment." Fed. R. Civ. P.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Liljeberg v. Health Services Acquisition Corp.
486 U.S. 847 (Supreme Court, 1988)
Jennings v. Rivers
394 F.3d 850 (Tenth Circuit, 2005)
Seng-Tiong Ho v. Taflove
648 F.3d 489 (Seventh Circuit, 2011)
Joseph Arrieta v. Deirdre Battaglia, Warden
461 F.3d 861 (Seventh Circuit, 2006)
Miller v. Safeco Insurance Co. of America
683 F.3d 805 (Seventh Circuit, 2012)
Eddie Robinson v. Aaron Bandy
524 F. App'x 302 (Seventh Circuit, 2013)
Obriecht v. Raemisch
517 F.3d 489 (Seventh Circuit, 2008)
Kyler Moje v. Federal Hockey League LLC
792 F.3d 756 (Seventh Circuit, 2015)
Buck v. Davis
580 U.S. 100 (Supreme Court, 2017)
Bennie Kennedy v. Schneider Electric
893 F.3d 414 (Seventh Circuit, 2018)
Theodore Frank v. Target Corporation
893 F.3d 980 (Seventh Circuit, 2018)
Banks v. Chicago Board of Education
750 F.3d 663 (Seventh Circuit, 2014)
Dzik v. Bayer Corp.
846 F.3d 211 (Seventh Circuit, 2017)
Acosta v. DT & C Global Management, LLC
874 F.3d 557 (Seventh Circuit, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
Catanese v. AbbVie Inc, Counsel Stack Legal Research, https://law.counselstack.com/opinion/catanese-v-abbvie-inc-ilnd-2018.