Chauvin v. Bayer Healthcare Pharmaceuticals, Inc.

Background

This dispute arose in multidistrict litigation involving fluoroquinolone products. The court had issued two relevant pretrial orders. Pretrial Order 4 assigned the plaintiffs’ leadership group responsibility for common-benefit work, including general discovery and motions made on behalf of all plaintiffs. It also preserved individual plaintiffs’ right to act in their own interests.

The plaintiffs’ leadership group retained four experts who prepared reports on general causation and liability. Bayer challenged three of those experts under Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. Before the court decided that challenge, the plaintiffs’ leadership group entered a voluntary settlement program with Bayer and Merck, and the court temporarily stayed the proceedings.

The court later issued Pretrial Order 18. It required plaintiffs who did not participate in the settlement program—called “Litigating Plaintiffs”—to provide, within 120 days after opting out, an expert report on general causation and an expert report concerning liability. The order also stated that noncompliance could lead to an order requiring the plaintiff to explain the failure and then dismissal with prejudice.

Barbara and Mark Chauvin chose not to participate in the settlement program and became subject to Pretrial Order 18. Bayer asked the court to require them to explain their alleged noncompliance. After a hearing, the court gave them a 40-day extension. The court later held another hearing.

Court’s Analysis

The Chauvins argued that the plaintiffs’ leadership group remained responsible for defending challenges to general-causation and liability experts, so the Chauvins did not have to retain their own experts. The court rejected that argument.

The court interpreted Pretrial Order 4 as requiring the plaintiffs’ leadership group to handle strategic decisions and common-benefit pretrial motions, but not case-specific motions. The court also concluded that Pretrial Order 4 did not impose a fiduciary or other duty on the leadership group to defend case-specific challenges for individual plaintiffs.

The court held that the Chauvins’ decision to continue litigating made them responsible for complying with Pretrial Order 18 and responding to case-specific motions. Because providing the required reports necessarily involved retaining the experts who prepared them, the court found that the Chauvins had failed to comply with Pretrial Order 18 by not retaining general-causation and liability experts.

Order and Effect

Judge John R. Tunheim did not dismiss the Chauvins’ case with prejudice. Instead, the court ordered the plaintiffs to comply with Pretrial Order 18, including formally retaining general-causation and liability experts, within 90 days of the order. The defendants may renew their request for an order requiring the Chauvins to explain their noncompliance if they have not complied when that period ends.