Chauvin v. Bayer Healthcare Pharmaceuticals, Inc.

Background

Barbara and Mark Chauvin were plaintiffs in multidistrict litigation involving fluoroquinolone products. They chose not to participate in a voluntary settlement program and therefore became “Litigating Plaintiffs.” Pre-Trial Order 18 required those plaintiffs to provide specified information and documents, including expert reports addressing general causation, case-specific causation, and the defendant’s liability. The order also required them to formally retain general-causation and liability experts.

The court previously ordered the Chauvins to show cause—meaning to explain why their case should not be dismissed—and granted them a 40-day extension. On April 6, 2020, the court granted another 90-day extension, which expired on July 6, 2020. The Chauvins filed a memorandum asserting that they had complied, but Bayer renewed its request for an order requiring them to show cause.

Arguments and analysis

The court concluded that the Chauvins had not retained the required experts. Letters they sent to experts associated with the plaintiffs’ leadership group did not establish that the experts had agreed to be retained or would be available for depositions and pretrial motion hearings. The letters were also sent after the 90-day extension had expired.

The Chauvins additionally argued that Bayer had waived its right to challenge expert testimony under the rule established in Daubert v. Merrell Dow Pharmaceuticals, Inc. The court rejected that argument, finding that Bayer had withdrawn an earlier challenge as part of the settlement agreement while preserving the right to renew the challenge against experts offered by Litigating Plaintiffs. The court also rejected the Chauvins’ request to transfer the case to the Eastern District of Louisiana, explaining that Pre-Trial Order 18 assigned related expert challenges to this court and provided that transfer would occur only when a case was ready for trial.

Ruling

The court held that Pre-Trial Order 18 and the April 6 order required the Chauvins to retain general-causation and liability experts, and that they had not done so despite multiple orders and extensions. The court found that they had not shown cause why the case should remain pending and dismissed Plaintiff’s case with prejudice. Chief Judge John R. Tunheim ordered that judgment be entered accordingly.