The United States Court of Appeals for the Seventh Circuit affirmed the dismissal with prejudice of plaintiff’s case against the Bayer Corporation citing the inexcusable neglect of plaintiff’s attorneys in failing to comply with court orders concerning discovery.
Plaintiff Jennifer Dzik, represented by the law firm Berke, Berke & Berke, brought of one of multiple cases against Bayer as part of a multidistrict litigation alleging that she suffered a blood clot as a result of her use of Yasmin, a prescription birth control pill. Dzik’s case alleged that she had suffered the injury at or around the time Dzik’s doctor had provided samples of Yasmin to Dzik.
In March of 2014, Bayer requested discovery from Dzik regarding this allegation, specifically requesting medical records or an affidavit from Dzik’s doctor regarding the Yasmin sample. Berke ignored the request for 15 months, and this prompted the district court to enter a case management order requiring a response to Bayer’s discovery request for medical records in August 2015, which provided for an automatic dismissal of Dzik’s case if she failed to comply.
Berke failed to respond to the district court’s August 2015 order. In December 2015, Bayer moved to dismiss Dzik’s case for failing to comply with the court’s August, 2015 order. Berke again failed to respond. In January 2016, the district court dismissed Dzik’s case with prejudice. Berke then filed a motion to set aside the dismissal, which the district court denied. The Seventh Circuit affirmed the district court’s decision to deny Berke’s motion to set aside the dismissal, noting that the motion was vague and a “concession of neglect” by Berke. The Seventh Circuit further found that the district court’s August 2015 case management order was “crystal clear,” that Berke had ample time to respond to discovery in Dzik’s case, and that Berke’s neglect was not excusable.
Failure to comply with court orders may constitute legal malpractice. If you believe that you have a legal malpractice claim against your former attorney, you can contact the Patterson Law Firm to discuss how we can help you.