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In Re Yasmin and Yaz (Drospirenone) Marketing v. Bayer Healthcare LLC

April 12, 2012


The opinion of the court was delivered by: Herndon, Chief Judge,

This Document Relates to:

Judge David R. Herndon



This matter is before the Court on the plaintiff's motion to reconsider (Doc. 32) the Court's order denying remand (Doc. 29). For the reasons discussed below, the Court DENIES plaintiff's motion for reconsideration.


Plaintiff brought this product liability action in Washington state court against the Bayer defendants and The Vancouver Clinic, among others. The complaint alleges that the plaintiff was injured as a result of using YAZ, an FDA-approved oral contraceptive prescription medication. The sole non-diverse defendant is The Vancouver Clinic -- the healthcare facility that prescribed and distributed the subject drug to the plaintiff. The Bayer defendants removed this action to the Western District of Washington, alleging that The Vancouver Clinic had been fraudulently joined. The action was subsequently transferred to this MDL with plaintiff's motion to remand pending.

Plaintiff asserts causes of action sounding in strict liability, negligence, breach of express and implied warranties, intentional misrepresentation/fraud, and statutory consumer protection. In denying remand, the Court found that plaintiff's claims for strict liability, negligence, and breach of express or implied warranty were product liability claims governed by Washington's Product Liability Act ("WPLA") and that The Vancouver Clinic was not subject to liability under the WPLA (Doc. 29 pp. 6-8). Accordingly, the Court found that plaintiff's product liability claims had no reasonable chance of success (Doc. 29 pp. 4-5).

The Court also noted that plaintiff's breach of warranty claims could be brought under Washington's version of the Uniform Commercial Code ("UCC") (Doc. 29 pp. 8-10). The Court concluded, however, that recovery under the UCC was not available because the subject transaction was predominately a transaction involving the sale of services (Doc. 29 pp. 8-10). Finally, with regard to plaintiff's claims for intentional misrepresentation/fraud and statutory consumer protection (non-product liability claims not governed by the WPLA), the Court found that plaintiff had failed to state a claim against The Vancouver Clinic (Doc. 29 pp. 10-14). With regard to the claim for intentional misrepresentation/fraud, the Court specifically found that the plaintiff failed to plausibly plead facts establishing that The Vancouver Clinic made any representation to the plaintiff, let alone a representation involving the requisite scienter. In her present motion, plaintiff insists that paragraphs 48 and 49 of her complaint cure the pleading defects in her claim for intentional misrepresentation/fraud. Plaintiff contends that the Court must have "overlooked" or misunderstood the allegations in paragraphs 48 and 49 and asks the Court to reconsider its ruling.


Technically, a "Motion to Reconsider" does not exist under the Federal Rules of Civil Procedure. The Seventh Circuit has held that a motion challenging the merits of a district court order will automatically be considered as having been filed pursuant to Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure.*fn1 See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994). If a motion for reconsideration is filed within 28 days of the entry of the challenged order, the substance of the motion determines whether the motion should be analyzed under Rule 59(e) or Rule 60(b). Ho v. Taflove, 648 F.3d 489, 495 nn. 4--5 (7th Cir. 2011); Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008). See also Fed. R. Civ. P. 59(e) ("A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment."). However, a motion to reconsider filed more than 28 days after entry of the challenged order, "automatically becomes a Rule 60(b) motion." Hope v. United States, 43 F.3d 1140, 1143 (7th Cir. 1994) (citing United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992)); see also Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 742-43 (7th Cir. 2009); Talano v. N.W. Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001).

The order plaintiff is challenging was entered on August 25, 2011 (Doc. 29). Plaintiff's motion to reconsider was filed on September 27, 2011 (Doc. 32) -- more than 28 days after the entry of the challenged order. Therefore, the plaintiff's motion must be treated as a motion for reconsideration under Rule 60(b).

Relief under Rule 60(b) is limited to the grounds specified in the rule -- such as "mistake, inadvertence, surprise, or excusable neglect;" newly discovered evidence; fraud; or extraordinary circumstances that are ordinarily not available on direct appeal. See FED. R. CIV. P. 60(b); Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 863--64 & nn. 10--11 (7th Cir. 1988).*fn2 A district court has discretion to deny relief under Rule 60(b), and a district court's decision is reviewed under an "extremely deferential" abuse of discretion standard. Eskridge v. Cook County, 577 F.3d 806, 808-09 (7th Cir. 2009). "Because relief under Rule 60(b) is 'an extraordinary remedy and is granted only in exceptional circumstances,' a district court abuses ...

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