Chauvin v. Bayer Healthcare Pharmaceuticals, Inc.

                   UNITED STATES DISTRICT COURT                          
                      DISTRICT OF MINNESOTA                              

IN RE: FLUOROQUINOLONE                  MDL No. 2642 (JRT)               
PRODUCTS LIABILITY LITIGATION                                            
                                 MEMORANDUM OPINION AND ORDER            
                                 GRANTING 90-DAY PTO 18 EXTENSION        

THIS DOCUMENT RELATES TO:        Master Docket Case No. 0:15-md-02642    

Chauvin v. Bayer HealthCare                                              
Pharmaceuticals Inc.                                                     
Case No. 0:18-cv-00579-JRT.                                              



    The present dispute requires the Court the determine whether, based on the 
Court’s prior pre-trial orders (“PTO”), Plaintiffs’ Leadership or Litigating Plaintiffs are now 
responsible for retaining and producing general causation and liability experts for pre-
trial motion practice.  The Court finds that this responsibility is not covered by PTO 4, but 
that PTO 18 does require Plaintiffs to undertake this responsibility.  The Court will 
therefore also find, by failing to retain such experts, that Plaintiffs Barbara and Mark 
Chauvin (the “Chauvins”) are noncompliant with PTO 18.  Instead of dismissing their case 
with prejudice for failure to comply with PTO 18, however, the Court will grant the 
Chauvins 90 days from the date of this Order to comply with PTO 18.       
                          BACKGROUND                                     

    The parties are familiar with the factual and procedural background of this multi-
district litigation (“MDL”).  Accordingly, the Court will only discuss here the factual and 
procedural history necessary to resolve the current dispute.              
    The Court issued PTO 4 on March 17, 2016.  (PTO No. 4, March, 17, 2016, MDL No. 
15-2642, Docket No. 112.)  PTO 4 designates Plaintiffs’ Leadership Counsel and governs 

their activities.  (Id. at 1.)   PTO 4 states, in relevant part, that Plaintiffs’ Leadership “shall 
take  the lead in litigating these matters on behalf of all Plaintiffs, meaning that they shall 
play the lead role in making strategic, tactical, and procedural decisions” on behalf of all 

Plaintiffs.  (Id. at 3.)  Even so, PTO 4 notes that individual plaintiffs, “retain the right to 
choose to act in their own best interest in these proceedings.”   (Id.)  PTO 4 also requires 
Plaintiff’s Leadership to perform certain general discovery and pre-trial motion practice 
for the benefit of all plaintiffs, including “[i]nitiat[ing], coordinat[ing] and conduct[ing] all 

generic pretrial discovery on behalf of all Plaintiffs” and “[s]ubmit[ing] . . . any motions to 
the Court on behalf of all Plaintiffs as well as oppos[ing], as appropriate, any motions 
submitted by Defendants” on behalf of all Plaintiffs.  (Id. at 3–4.)  Finally, PTO 4 notes that 
Plaintiffs’ Leadership has responsibility for trial preparation for “bellweather and/or test 

case trial(s).” (Id. 6 (internal quotation marks omitted).)               
    To meet the demands of PTO 4 and for the benefit and on behalf of all Plaintiffs, 
Plaintiffs’ Leadership retained four experts that produced reports on general causation 
and liability.  (See Decl. of Lori B. Leskin ¶¶ 3–9, Exs. 1–7, May 23, 2018, MDL No. 15-2642, 
Docket No. 615 (citing reports and depositions of the general experts).).   

    On May 23, 2018, Bayer filed a Motion to Exclude three of the four experts under 
Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).  (Mot. to 
Exclude, May 23, 2018, MDL No. 15-2642, Docket No. 613).  Plaintiffs’ Leadership opposed 
the Motion, and Bayer replied.  (See Pl.’s Mem. Opp. Mot. to Exclude, June 19, 2018, MDL 

No. 15-2642, Docket No. 641; Def’s Reply, July 2, 2018, MDL No. 15-2642, Docket No. 
651.).                                                                    
    Before the Court considered the Motion, however, Plaintiffs’ Leadership entered 

into a Memorandum of Understanding that created a voluntary settlement program 
between Plaintiffs’ and the Bayer and Merck Defendants.  Accordingly, on October 11, 
2018, the Court issued an Order temporarily staying the proceedings, including Bayer’s 
Motion to Exclude.  (Order Staying Bayer and Merck Cases, Oct. 11, 2018, MDL No. 15-

2642, Docket No. 709.)                                                    
    On January 2, 2019, in light of the voluntary settlement program, the Court issued 
PTO 18, which set forth production requirements that all plaintiffs in the Bayer and Merck 
cases opting not to settle under the voluntary settlement program (“Litigating Plaintiffs”) 

were required to adhere to.  (PTO 18 ¶ 9, Jan. 2, 2019, MDL No. 15-2642, Docket No. 758.)  
Among other things, PTO 18 required Litigating Plaintiffs to produce, no later than 120 
days after electing not to settle, (1) an expert report on general causation concerning the 
alleged injury/injuries; and (2) an expert report on the basis for liability concerning the 
Bayer and Merck Defendants.  (PTO 18 ¶ 9(f), 10(a).)  PTO 18 also set forth consequences 

for Litigating Plaintiffs that fail to comply: an Order to Show Cause, followed by dismissal 
with prejudice.  (PTO 18 ¶ 11.)  Five days later, on January 7, 2019, Bayer voluntarily 
withdrew its Motion to Exclude based on the settlement program and PTO 18.  (Letter 
Withdrawing Motions, Jan. 7, 2019, MDL No. 15-2642, Docket No. 759.)      

    At some point after this, the Chauvins decided not to participate in the voluntary 
settlement program and became Litigating Plaintiffs subject to the requirements of PTO 
18.  On October 7, 2019, Bayer filed a Motion for an Order to Show Cause against 

Chauvins, arguing that the Chauvins had failed to comply with PTO 18.  (Mot. Order to 
Show Cause, Oct. 7, 2019, Case No. 18-579, Docket No. 19.)                
    On October 10, 2019, the Court granted the Motion and issued an Order to Show 
Cause, directing the Chauvins to (1) file proof of curing the alleged discovery deficiency; 

(2) file a stipulation dismissing the Bayer and Merck Defendants with prejudice; or (3) 
appear before the Court to show good cause why the Court should not dismiss the case.  
(Order to Show Cause, Oct. 11, 2019, 18-579 Docket No. 23.)               
    On November 20, 2019, the Court held a hearing on the Order to Show Cause and 

granted the Chauvins a 40-day extension—until December 30, 2019—to comply with PTO 
18.  (Minutes on Status Conference and Show Cause Hearing, Nov. 21, 2019, MDL No. 15-
2642, Docket No. 943.)  The parties filed additional briefing, (Case No. 18-579, Docket 
Nos. 26–27), and, on February 19, 2020, the Court held an additional Show Cause hearing 
(Minutes on Status Conference and Show Cause Hearing, Feb. 19, 2020, MDL No. 15-2642, 

Docket No. 981.)                                                          
                           DISCUSSION                                    

    The parties primarily dispute whether the Chauvins under PTO 18 or Plaintiffs’ 

Leadership under PTO 4 are responsible for retaining and producing general causation 
and liability experts.  The Chauvins argue that, because a few of the cases in the MDL have 
not settled or been dismissed, Plaintiffs’ Leadership is responsible for defending Daubert 
challenges against general causation and liability experts and that it is not the Chauvins’ 

responsibility to retain and hire these experts.                          
    The  Court  disagrees.    PTO  4  directs  Plaintiffs’  Leadership  to  make  strategic 
decisions  for  the  common  benefit  of  all  plaintiffs  and  to  defend  pre-trial  motions 
presented to the Court on behalf of all plaintiffs.  It does not require Plaintiffs’ Leadership 

to defend case-specific motions and in fact preserves the right of individual plaintiffs to 
act in their own self-interest.1  Plaintiffs’ Leadership made the strategic decision to enter 



1 At the Show Cause hearing, Counsel for the Chauvins argued vaguely that Plaintiffs’ Leadership 
owed a fiduciary duty to the Chauvins to defend any Daubert motions related to general 
causation and liability experts.  Because the Court finds PTO 4 does not create any duty—fiduciary 
or otherwise—for Plaintiffs’ Leadership to defend case-specific motions, the Chauvins’ argument 
fails.  See Casey v. Denton, No. 3:17-CV-00521, 2018 WL 4205153, at *4 (S.D. Ill. Sept. 4, 2018) 
(noting that “[o]ne can only act in a fiduciary capacity, and thus have a fiduciary duty, to the 
                                         (footnote continued on next page) 
the  settlement  agreement  for  the  common  benefit  of  all  plaintiffs.    The  Chauvins 
evidently disagreed with Plaintiffs’ Leadership’s decision to settle—as is their right—and 

decided to continue litigating their claims.  In so doing, however, the Chauvins became 
responsible for complying with PTO 18 and responding to any case-specific motions 
Defendants may file.  PTO 18 requires Litigating Plaintiffs to serve general causation and 
liability reports on Defendants.  Serving these reports necessarily entails the responsibility 

of retaining the experts who prepared the reports; if it did not,  Litigating Plaintiffs could 
not guarantee the experts would testify at trial and therefore could not be prepared for 
trial.  Because the Chauvins have not retained general causation and liability experts, the 

Court finds that the Chauvins have failed to comply with PTO 18.  Instead of dismissing 
their case with prejudice, however, the Court will grant the Chauvins 90 days from the 
date of this Order retain the proper experts and to otherwise comply with PTO 18.  
                             ORDER                                       

    Based on the foregoing, and all the files, records, and proceedings herein, IT IS 
HEREBY ORDERED that:                                                      
    1.   Plaintiffs’ must comply with PTO 18, which necessarily includes formally 
retaining general causation and liability experts, within 90 days from the date of this 

Order;                                                                    


extent his actions comport within the boundaries set by the agreement initially creating the 
relationship”).                                                           
     2.     At the expiration of that time, Defendants may renew their Motion to Show 
Cause if Plaintiffs have not yet complied with PTO 18. 

DATED:  April 6, 2020                                 W. (Hebi 
at Minneapolis, Minnesota.                         JOHN R. TUNHEIM 
                                                   Chief Judge 
                                            United States District Court 

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