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Rivera v. Abbott Laboratories

United States District Court, S.D. Illinois

April 25, 2017

CONNIE RIVERA, as parent and next friend of C.R., an incompetent adult, Plaintiffs,


          NANCY J. ROSENSTENGEL United States District Judge

         Pending before the Court is Plaintiffs' motion to dismiss filed on January 27, 2017. (Doc. 9). On March 2, 2017, Defendants filed a response asserting that the dismissal should be with prejudice or subject to certain conditions if Plaintiffs seek to refile their claims. (Doc. 10). For the reasons set forth below, the dismissal is granted, without prejudice but subject to the conditions set forth below.

         The claims asserted in this case are part of a mass action involving more than 600 claims on behalf of Plaintiffs who allege they suffered serious birth defects as a direct result of exposure to Depakote, an anticonvulsant drug marketed and sold by Defendants. The original claims were filed in various Illinois state courts starting in late 2010. Soon thereafter, Defendants removed the cases to federal court pursuant to the Class Action Fairness Act in both the Southern and Northern Districts of Illinois, a move that Plaintiffs unsuccessfully challenged before the Seventh Circuit. In re Abbott Labs., Inc., 698 F.3d 568 (7th Cir. 2012).

         On May 19, 2014, the mass tort was reassigned to the undersigned District Judge from the docket of Judge David Herndon. See (Case No. 12-CV-52, Doc. 288). The Court has attempted to advance the prospects of settlement through, among other things, the appointment of a dedicated mediator and the bellwether trial approach. (Case No. 12-CV-52, Docs. 485; 439). After almost two years of the bellwether trial process, including multiple attempts to facilitate settlement, the Court issued an Order noting the failure of the bellwether approach and setting the litigation on a path towards the next phase in the mass action. (Case No. 12-CV-52, Doc. 485). To gain a better understanding of the docket, the Court began ordering depositions of the key prescribing physicians in a number of cases. (Case No. 12-CV-52, Doc. 485, p. 3). Given the significant amount of information gained from each deposition, the Court issued a second round of prescriber depositions on October 31, 2016.[1] (Case. No. 12-CV-52, Doc. 653). This case was among those selected for a key prescriber deposition in the October 31, 2016 Order. (Case. No. 12-CV-52, Doc. 653-1. p.2).

         Plaintiffs seek a dismissal without prejudice based upon a lack of “dispositive motions filed or burdensome discovery undertaken in this action….” (Doc. 9, p. 3). Defendants respond that dismissal should “be with prejudice, or, at a minimum, be subject to appropriate conditions…” (Doc. 10, p. 1).


         A plaintiff can voluntarily dismiss an action without a court order if the defendant has not served an answer or motion for summary judgment, or by the stipulation of both parties. Fed.R.Civ.P. 41(a)(1). If the requirements of Rule 41(a)(1) are not met, “an action may be dismissed at the plaintiff's request only by court order, on terms that the court consider proper.” Fed.R.Civ.P. 41(a)(2).

         A dismissal without prejudice should be granted “unless the defendant will suffer plain legal prejudice other than the mere prospect of a second law suit.” Stern v. Barnett, 452 F.2d 211, 213 (7th Cir. 1971) (internal citation omitted). The Seventh Circuit has identified four factors to aid a court in determining if the defendant will suffer legal prejudice. The factors include: “the defendant's effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal, and the fact that a motion for summary judgment has been filed by the defendant.” Pace v. S. Exp. Co. 409 F.2d 331, 334 (7th Cir. 1969). The factors are not “a mandate that each and every such factor be resolved in favor of the moving party before dismissal is appropriate. It is rather simply a guide for the trial judge, in whom the discretion ultimately rests.” Tyco Labs., Inc. v. Koppers Co., Inc., 627 F.2d 54, 56 (7th Cir. 1980).

         When dismissing an action without prejudice and imposing terms and conditions in accordance with Rule 41(a)(2), “the terms and conditions must be for the defendant's benefit. They are the quid for the quo of allowing the plaintiff to dismiss his suit without being prevented by the doctrine of res judicata from bringing the same suit again.” McCall-Bey v. Franzen, 777 F.2d 1178, 1184 (7th Cir. 1985). If a court imposes terms and conditions in accordance with Rule 41(a)(2), a plaintiff seeking dismissal without prejudice is not required to accept those conditions and instead has “the option of withdrawing his motion…and proceeding instead to trial on the merits.” Marlow v. Winston & Strawn, 19 F.3d 300, 304 (7th Cir. 1994). If the terms and conditions imposed by a court are accepted, and a claim is dismissed without prejudice, a subsequent violation of those terms will “convert [the] dismissal without prejudice into a dismissal with prejudice.” McCall-Bey, 777 F.2d at 1184.

         Applying the Pace factors, it is clear that Defendants would suffer prejudice if an unconditional dismissal without prejudice were ordered. Plaintiffs assert that Defendants' “efforts and expense in preparation for the trial are minimal, if any” because “no depositions or written discovery has been completed in this case [and] no trial date has been set.” (Doc. 9, p. 2). Plaintiffs' narrow view may be technically correct in that no specific discovery has been completed and a trial date has not been issued, however, such an assertion fails to appreciate the collective effort, resources, and time spent in advancing the Depakote mass action.

         Defendants have been required to litigate a variety of issues in the name of advancing the mass action litigation. While Plaintiffs' brief might attempt to paint a picture that nothing has occurred in this case, the following is a non-exclusive list of actions taken that have advanced the claims in this case (along with every other case in the Depakote mass action):

         1) Establishment of docketing and filing procedure. (Case No. 12-CV-52, Doc. 560).

         2) Over 40 discovery hearings and status conferences before Magistrate Judge Williams where the Court, among other things, established policy and procedures to manage reoccurring discovery issues in the mass action. See e.g., (Case No. 12-CV-52, Docs. 912; 827; 764; 726; 710; 684; 664; 637; 554; 536; 515; 491; 481; 462; 449; 441; 434; 431; 428; 423; 414; 396; 390; 378; 372; 369; 357; 343; 340; 325; 314; 312; 270; 262; 255; 248; 242; 238; 227; 223; 209; 199; 189; 180; 172).

         3) Briefing and argument on global issues including choice of law, subject matter jurisdiction, and the ...

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