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In re Bair Hugger Forced Air Warming Devices Products Liability Litigation

United States District Court, D. Minnesota

March 12, 2018

In re BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS LIABILITY LITIGATION This Document Relates To: Strain
v.
3M Co. 17-cv-1978 Hufford
v.
3M Co. 17-cv-2372 Key
v.
3M Co. 17-cv-2581 Campbell
v.
3M Co. 17-cv-2919 Quinan
v.
3M Co. 17-cv-3445 Gallo
v.
3M Co. 17-cv-3666 Ramirez
v.
3M Co. 17-cv-3721 Thornton
v.
3M Co. 17-cv-3834 Slaughter
v.
3M Co. 17-cv-4431 Hammel-Fogleboch
v.
3M Co. 17-cv-4500 Horn
v.
3M Co. 17-cv-4515 Williams
v.
3M Co. 17-cv-4519

          ORDER

          JOAN N. ERICKSEN UNITED STATES DISTRICT JUDGE

         Defendants 3M Company and Arizant Healthcare, Inc., moved to dismiss seventeen member cases in the Bair Hugger MDL, including the above-captioned, for Plaintiffs' failure to comply with Pretrial Order No. 14 (“PTO 14, ” Dkt. No. 117). Mot., 15-md-2666 Dkt. No. 1124. Defendants withdrew their Motion as to Venice Jelks (17-cv-2949). 15-md-2666 Dkt. No. 1165. Plaintiffs Kenneth Mason (17-cv-4293), Michael McDaniel (17-cv-3311), Mary Miller (17-cv-3809) and Leroy Sundquist (17-cv-3547) stipulated, jointly with Defendants, to dismiss their cases without prejudice.

         The Court now decides the Motion as to the twelve above-captioned Plaintiffs. Plaintiffs must complete and serve Plaintiff Fact Sheets in lieu of interrogatories. See Dismissal Order 1-2 (July 24, 2017), 15-md-2666 Dkt. No. 622. Because PTO 14 causes express warnings of dismissal and gives plaintiffs opportunities to cure noncompliance, the Court may dismiss a case with prejudice if plaintiff has failed to comply with that Order despite those warnings and opportunities. Dismissal Order 1-3 (Dec. 21, 2017), 15-md-2666 Dkt. No. 1028; see Fed. R. Civ. P. 41(b) (allowing dismissal for failure to comply with court orders). The Court may also dismiss a case for plaintiff's failure to prosecute. Fed.R.Civ.P. 41(b). Defendants here have made an initial showing that the above-captioned Plaintiffs should be dismissed for failing to comply with PTO 14. 15-md-2666 Dkt. Nos. 1126-27. So, to resist dismissal, these Plaintiffs must oppose the Motion. See PTO 14 ¶ 8.

         I. The Motion is granted as to Plaintiff Gerald Campbell.

         Plaintiff Gerald Campbell (17-cv-2919) does not respond to and so does not oppose the Motion. The Court thus GRANTS the Motion as to him and DISMISSES his case with prejudice for failing to comply with PTO 14 and failing to prosecute.

         II. The Motion is granted as to the seven Plaintiffs who have stopped communicating with counsel and have not disputed the Motion's merits.

         For Plaintiffs Steven Gallo (17-cv-3666), Christine Hammel-Fogleboch (17-cv-4500), Warren Horn (17-cv-4515), William Quinan (17-cv-3445), Eva Ramirez (17-cv-3721), Michael Strain (17-cv-1978) and Janice Williams (17-cv-4519), counsel responds to the Motion but does not dispute that these seven Plaintiffs have failed to comply with PTO 14. To oppose the Motion, Plaintiffs must dispute its merits. See Dismissal Order 2 (July 24, 2017) (deeming counsel's log of “unsuccessful attempts to enlist [plaintiff's] cooperation” non-opposition), 15-md-2666 Dkt. No. 622. Plaintiffs' counsel instead explains that these seven Plaintiffs have stopped communicating with counsel:

Plaintiff

Case No.

Last Contact

15-md-2666 Dkt. No.

Gallo

17-cv-3666

"several months" ago

1146 ¶ 6

Hammel-Fogleboch

17-cv-4500

"several months" ago

1144 ¶ 6

Horn

17-cv-4515

before Oct. 2017

1138, at 2

Quinan

17-cv-3445

"several months" ago

1149 ¶ 5

Ramirez

17-cv-3721

"several months" ago

1151 ¶ 5

Strain

17-cv-1978

"several months" ago

1153 ¶ 5

Williams

17-cv-4519

before Oct. 2017

1138, at 2-3

         This explanation does not go to the Motion's merits. So, these seven Plaintiffs have not opposed the Motion, as they had to. The Court thus GRANTS the Motion as to these seven Plaintiffs and DISMISSES their cases with prejudice for failing to comply with PTO 14 and failing to prosecute.

         III. The Motion is granted as Plaintiff William K. Key.

         Plaintiff William K. Key (17-cv-2581) does not dispute that he has failed to comply with PTO 14. Key Opp'n ¶¶ 9-10, 15-md-2666 Dkt. No. 1161. Instead, he asks for a sixty-day extension. Id. at 3. He asserts hardships that are supported, in the record, only by his counsel's declaration. See 15-md-2666 Dkt. No. 1162.

         Key's request is denied. The Court does not extend deadlines for asserted hardship when that assertion is supported, in the record, only by counsel's declaration- as it is here. See Dismissal Order 3 (Feb. 15, 2018) (dismissing then-plaintiff McLaughlin despite asserted hardship), 15-md-2666 Dkt. No. 1100. Compare Green Decl. for McLaughlin ¶ 8 (Feb. 8, 2018) (declaring that plaintiff stated hardship), 15-md-2666 Dkt. No. 1089, with Obit: Walter King, Times Free Press (Aug. 6, 2017), http://www.timesfreepress.com/obits/2017/aug/06/walter-king/90310, 15-md-2666 Dkt. No. 839-1. Because Key has not otherwise resisted the Motion, the Court GRANTS the Motion as to him and DISMISSES his case with prejudice for failing to comply with PTO 14.

         IV. The Motion is denied without prejudice to renew as to Plaintiff Shirley Slaughter.

         Counsel for Plaintiff Shirley Slaughter suggested her death. 17-cv-4431 Dkt. No. 6. To allow substitution under Pretrial Order No. 23, 15-md-2666 Dkt. No. 1039, the Motion as ...


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