Barbara Chauvin; Mark Chauvin v. Bayer Healthcare Pharmaceuticals, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 20-3192
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Barbara Chauvin; Mark Chauvin
lllllllllllllllllllllPlaintiffs - Appellants
v.
Bayer Healthcare Pharmaceuticals, Inc.
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: September 20, 2021
Filed: September 27, 2021
[Unpublished]
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Before SMITH, Chief Judge, ARNOLD and GRUENDER, Circuit Judges.
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PER CURIAM.
Barbara and Mark Chauvin sued Bayer Healthcare Pharmaceuticals, Inc., in
federal court in the Eastern District of Louisiana for injuries they say stem from a
Bayer drug containing fluoroquinolone. Their case was transferred to the District of
Minnesota to be part of the multidistrict litigation (MDL) taking place there involving

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the drug. The district court1 eventually dismissed the Chauvins' claims for their failure
to comply with a pretrial order, and they appeal. We affirm.
To help ensure that the MDL proceeded smoothly, the district court designated
certain attorneys as lead counsel for the plaintiffs in the MDL and charged them with
"making strategic, tactical, and procedural decisions on behalf of the Plaintiffs'
counsel and pro se Plaintiffs." Lead counsel retained four experts that produced
reports on general causation and liability, though lead counsel eventually agreed with
Bayer and others on a master settlement. Plaintiffs were not obligated to participate
in this master settlement and were free to litigate their claims individually. The
Chauvins chose not to settle.
The district court entered an order setting forth the pretrial obligations of those,
like the Chauvins, who opted not to settle. The obligation most relevant for our
purposes was that they had to provide expert reports "on general causation concerning
the alleged injury/injuries" within 120 days after deciding not to participate in the
master settlement. The order warned that failure to do so would result in dismissal of
their complaint with prejudice.
More than 120 days after the deadline for plaintiffs to join the master
settlement, Bayer moved for an order directing the Chauvins to show cause why they
had not complied with the pretrial order. The Chauvins had apparently re-served
copies of the reports that leadership counsel had obtained several months earlier from
the experts they had retained. Bayer asked the Chauvins to confirm whether they had
indeed retained the experts and whether they could produce them for testimony. At
a hearing on the matter, the Chauvins maintained that they should not have to retain
experts until their case was returned to the Eastern District of Louisiana. The district
1The Honorable John R. Tunheim, Chief Judge, United States District Court for
the District of Minnesota.
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court disagreed and explained that the case would not be transferred to that court until
it was "essentially ready for trial." The court gave the Chauvins an additional forty
days to comply with its order.
That period elapsed with no progress. The Chauvins contended that it was the
responsibility of lead counsel to retain the experts and defend them from any
challenge Bayer might assert. The district court rejected that contention and explained
that, when the Chauvins chose not to participate in the master settlement, it became
their responsibility to litigate their own claims and to comply with the relevant
pretrial order. And since that order required the Chauvins to serve expert reports, it
"necessarily entail[ed] the responsibility of retaining the experts who prepared the
reports" to ensure they would appear at trial. The court nonetheless gave the Chauvins
an additional ninety days to comply.
Ninety days elapsed without much progress. Bayer again moved for an order
to show cause, and the court gave the Chauvins an additional twenty-one days either
to cure the deficiency or to show cause why the court should not dismiss their case.
At the end of this period, the Chauvins replied that they had "produced everything
required of them" by the pretrial order and attached letters they had sent to the four
experts. Those letters advised the experts to preserve the work they had done as
experts for lead counsel and that the Chauvins would inform them if their testimony
was necessary.
The district court deemed these letters insufficient "because they do not show
that the experts have agreed to be retained or that the experts would be available for
pre-trial motions" as the order required. Because they had "neither retained the
required experts nor assured the Court they could produce experts for deposition at
pre-trial motion hearings," despite several opportunities, the court dismissed their
claims with prejudice.
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We have observed that the administration of a case in an MDL is different from
the administration of cases on a routine docket. See In re Guidant Corp. Implantable
Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867 (8th Cir. 2007). MDL courts face
unique difficulties in coordinating proceedings, all while seeking to further
Congress's aim in making these proceedings efficient. See id.; see also Freeman v.
Wyeth, 764 F.3d 806, 810 (8th Cir. 2014). As a result, MDL courts are "given greater
discretion to create and enforce deadlines in order to administrate the litigation
effectively," which "includes the power to dismiss cases where litigants do not follow
the court's orders." See Freeman, 764 F.3d at 810.
The Chauvins do not seriously contend on appeal that they satisfied the
requirements set forth in the court's pretrial order. In fact, they admit that "it was
certainly within the district court's discretion to find that the letters sent to the expert
witnesses were insufficient to comply with the intention of the" court's pretrial order.
They instead maintain that the court abused its discretion in dismissing their case
because they did not willfully disobey the court.
Perhaps the Chauvins did not willfully disobey the court, but we still think that
the district court did not abuse its discretion. The district court gave the Chauvins
several opportunities and extensions, and yet they continued to insist they had no duty
to retain and make available certain experts. All told, the district court spent about a
year giving the Chauvins extensions, warning them about continued noncompliance,
and rejecting various arguments they offered to justify their noncompliance. Though
the Chauvins may not have been "contumacious," they did appear to show "blatant
disregard for the deadlines and procedure imposed by the court," which we have said
provides ample support for a district court's decision to dismiss a complaint. See
Guidant Corp., 496 F.3d at 867. We see no abuse of discretion here.
Affirmed.
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