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In re Prempro Prods. Liab. Litig.

United States Court of Appeals for the Eighth Circuit

January 14, 2011, Submitted; August 8, 2011, Filed

No. 10-2478

Opinion

 [*659]  PER CURIAM.

Appellants seek reversal of the district court's1 dismissal of this action for failure  [*660]  to prosecute. We affirm.2

In 2004, Emily Heth and Martin Heth brought an action against Wyeth, Inc. and Wyeth Pharmaceuticals, Inc. (collectively "Wyeth"), for claims based on Emily's development of *** cancer allegedly resulting from her use of hormone therapy. The complaint was filed in the District of Montana, the Heths' domicile, but the Judicial Panel on Multidistrict Litigation (MDL) transferred the case to the Eastern District of Arkansas for discovery  [**2] and pretrial proceedings.

In September 2005, Emily died in an automobile accident. Martin was appointed personal representative of Emily's estate, and in April 2007, the estate was closed. Between August 2006 and February 2008, of the thousands of pending lawsuits, three representative trials were conducted while the court stayed the remainder of the actions, including this one. On March 23, 2010, the district court selected this case along with 199 others for limited, case-specific discovery. The court entered an April 1 order directing the plaintiffs in the 200 cases to provide defendants with updated medical authorization forms and warned that failure to do so could result in dismissal of their complaints for failure to prosecute. On May 11, Wyeth moved for dismissal of those actions, including this one, in which it had not received an updated medical authorization form. The district court gave plaintiffs until 5:00 PM on May 19 to provide the updated form and again warned that failure to do so could result in dismissal for failure to prosecute.

On May 24, Wyeth moved to dismiss the Heths' action. Martin responded to the motion by informing the court that Emily's estate had been closed  [**3] and that efforts were being made to reopen the estate and obtain the required updated medical authorization form. The district court dismissed the action for failure to prosecute. The district court also denied a post-judgment motion for relief. This appeal follows.

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423 Fed. Appx. 659 *; 2011 U.S. App. LEXIS 16382 **

In re: Prempro Products Liability Litigation,Emily Heth; Martin Heth, Plaintiff-Appellants, v. Wyeth, Inc; Wyeth Pharmaceuticals, Inc., Defendants-Appellees.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Subsequent History: Remanded by In re Prempro Prods. Liab. Litig., 2012 U.S. Dist. LEXIS 33702 (J.P.M.L., Mar. 9, 2012)

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of Arkansas.

Davidson v. Wyeth, Inc. (In re Prempro Prods. Liab. Litig.), 2011 U.S. Dist. LEXIS 15085 (W.D. Ark., Feb. 14, 2011)

CORE TERMS

district court, updated, cases, authorization, failure to prosecute, prosecute, action for failure, reopen, warned, multidistrict litigation, failure to comply, motion to dismiss, court order, administering, proceedings, directing, discovery, deadline