Petition for Writ of Certiorari — Michael Deuschel, Petitioner v. Bayer Healthcare Pharmaceuticals Inc., et al.

Supreme Court briefMar 10, 2025

Ask Donna

What actually matters in this document.

Text

XIV. Appendix

Appendix A Decision of the United States Ninth Circuit Court of Appeals

Appendix B Decision of the United States District Court

Appendix C Denial by Ninth Circuit Court of Appeals of Petitioner’s timely filed

Petition for Rehearing

Case 2:22-cv-08338-HDV-PD Document 67 Filed 09/15/23 Page 1 of 9 PagelD#:1516

JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL DEUSCHEL,

Case No. 2:22-cv-08338-HDV-PDx

Plaintiff,

BAYER HEALTHCARE

PHARMACEUTICALS, INC.; BAYER

PHARMA AG; BAYER CORPORATION;

BAYER HEALTHCARE, LLC; MCKESSON

CORPORATION; MCKESSON MEDICALSURGICAL INC.; MERRY XRAYCHEMICAL CORPORATION; and

DOES 1 THROUGH 50, inclusive,

Defendant.

ORDER GRANTING DEFENDANT BAYER

HEALTHCARE PHARMACEUTICALS

INC., BAYER CORPORATION, AND

BAYER HEALTHCARE LLC’S MOTION

TO DISMISS [36]

Case 2:22-cv-08338-HDV-PD Document 67 Filed 09/15/23 Page 2 of 9 Page ID #:1517

Before the Court is Defendants Bayer Healthcare Pharmaceuticals, Inc., Bayer Pharma Ag,

Bayer Corporation, and Bayer Healthcare, LLC’s (collectively, “Bayer” or “Bayer Defendants”)

Motion to Dismiss Plaintiffs Second Amended Complaint (“Mot.”), [Dkt. No. 36]. The matter is

fully briefed and oral argument was heard on September 7, 2023.

Defendants’ Motion asserts principally that Plaintiffs claims accrued in 2010, when Plaintiff

eventually learned the name of the specific drug (Magnevist) that was administered to him, and that

Plaintiffs claims are consequently time-barred by the applicable two-year or three-year statutes of

limitations. Mot. at 14-15. Plaintiffs opposition invokes the discovery rule and argues that the

claims are within the statute of limitations because Plaintiff did not learn of the product’s allegedly

inherent defects until December 2017 when he read a certain article in Forbes magazine. See

Plaintiff s Memorandum of Points and Authorities in Opposition to Motion to Dismiss Second

Amended Complaint (“Opp.”) at 17 [Dkt. No. 45].

The Court finds that, even accepting Plaintiff s allegations as true for purposes of this

motion, Plaintiff had actual or constructive knowledge of his claims by 2013 at the latest when he

received two separate medical opinions identifying Magnevist as the cause of his injuries. For this

reason, Plaintiffs claims are all time-barred. Defendants’ Second Amended Complaint is dismissed

without leave to amend.

BACKGROUND

A. Second Amended Complaint

Plaintiff brings this case alleging that he was injured after being injected with the Bayer

Defendants’ linear Gadolinium-Based-Contrast-Agent (GBCA), called Magnevist, for an imaging

procedure perfonned on June 12, 2009. Plaintiffs Second Amended Complaint (“SAC”), [Dkt. No.

30] f 1. GBCAs, including Magnevist, are administered to patients intravenously to enhance the

quality of magnetic resonance imaging, such as MRIs and MRAs. SAC f 22. At the time of the

injection in June 2009, Plaintiff alleges he had pre-existing moderate renal insufficiency, putting him

in Chronic Kidney Disease (CKD) class 3. SAC 1116. Plaintiff alleges that the operative warning

for Magnevist at the time of his injection was defective because it failed to warn that the product

Case 2:22-cv-08338-HDV-PD Document 67 Filed 09/15/23 Page 3 of 9 PagelD#:1518

could cause harm to patients in CKD Class 3.1 SAC

115-117.

Immediately upon the Magnevist injection in June 2009, Plaintiff suffered symptoms of

intense pain and weakness. SAC

skin disorders, hair loss, fibrotic accumulation, muscular and joint contractures, movement

restrictions, pain, and Nephrogenic Systemic Fibrosis (NSF) over the ensuing years as a result of the

June 2009 Magnevist injection. SAC

115, 118. He alleges severe symptoms such as renal failure,

136-137.

Plaintiff alleges that he did not initially know which product was used during his imaging

procedure. SACf 121. Plaintiff further alleges that, in August 2010, he learned that the contrast

dye used for his 2009 imaging procedure was Bayer’s Magnevist. SAC f 121. By 2013, Plaintiff

received two medical opinions stating that his symptoms were due to the June 2009 injection of

Magnevist. SAC

Kaiser Permanente based on alleged “gadolinium toxicity” from Magnevist use. SAC U 125.

124. Based on this information, Plaintiff pursued a claim for negligence against

B. Procedural History

Plaintiff initially filed this case in California state court on December 26, 2019, and

Defendants timely removed the case on November 15, 2022. [Dkt. No. 1], Plaintiff requested, and

Defendants did not oppose, leave to amend the First Amended Complaint, [Dkt. No. 24; Dkt. No.

27], which the Court granted [Dkt. No. 29].

Plaintiff filed his Second Amended Complaint on March 7, 2023 asserting claims for (1)

product liability based on a design defect and failure to warn; (2) violation of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.; (3) violation of the Unruh Civil Rights Act,

Cal. Civ. C. § 51, el seq.; and (4) negligence. The Bayer Defendants filed the present Motion on

April 20, 2023. [Dkt. No 36]. The McKesson Defendants2 joined Bayer’s Motion to Dismiss. [Dkt.

No. 39],

Plaintiff alleges that on December 20, 2010, Bayer and the FDA modified Magnevist’s Black Box

Warning, which—although Plaintiff argues was still defective—indicated a risk for those with

moderate kidney disease (CKD class 3, which Plaintiff fell into at the time). SAC If 48-53.

2 As used herein, “McKesson” refers collectively and generally to Defendants McKesson Corporation

and McKesson Medical-Surgical Inc.

-Case 2:22-cv-08338-HDV-PD Document 67 Filed 09/15/23 Page 4 of 9 Page ID #:1519

II.

LEGAL STANDARD

Defendant’s Motion is brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule

12(b)(6)”). Rule 12(b)(6) allows a party to seek dismissal of a complaint for “failure to state a claim

upon which relief can be granted.” To survive a motion to dismiss, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678. Labels, conclusions, and “formulaic recitation of the elements of a cause of

action” are insufficient. Twombly, 550 U.S. at 555.

The determination of whether a complaint satisfies the plausibility standard is a “context-

specific task that requires the reviewing court to draw on its judicial experience and common sense.”

Iqbal, 556 U.S. at 679. Generally, a court must accept the factual allegations in the pleadings as true

and view them in the light most favorable to the plaintiff. Park v. Thompson, 851 F.3d 910, 918 (9th

Cir. 2017); Lee v. City ojLos Angeles, 250 F.3d 668, 679 (9th Cir. 2001). But a court is “not bound

to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555).

As a general rule, leave to amend a dismissed complaint should be freely granted unless it is

clear the complaint could not be saved by any amendment. Fed. R. Civ. P. 15(a); Manzarek v. St.

Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). A “district court may dismiss

without leave where a plaintiffs proposed amendments would fail to cure the pleading deficiencies

and amendment would be futile.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041

(9th Cir. 2011).

\\\

Case 2:22-cv-08338-HDV-PD Document 67 Filed 09/15/23 Page 5 of 9 Page ID #:1520

III.

DISCUSSION

Plaintiff brought this action on December 26, 2019.3 Plaintiffs claims for products liability,

violation of California’s Unruh Act, and negligence are all subject to a two-year statute of

limitations. See Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 809 n. 5 (2005) (“The statute of

limitations for an action for injury to an individual caused by the wrongful act or neglect of another

must be commenced within two years from the date of accrual.”) (citing Cal. Civ. Proc. Code §

335.1); Counter v. Taras Invs., LLC, 2022 WL 2234954, at *3 (C.D. Cal. Jan. 20, 2022) (“Unruh Act

claims are subject to a two-year statute of limitations.”). Thus, if Plaintiff s claims accrued before

December 26, 2017, these three claims are time barred.

Plaintiff also brings a claim under Title III of the ADA. The ADA does not provide a statute

of limitations for Title III claims. Therefore, under Wilson v Garcia, federal courts look to the most

analogous state statutes to determine limitations periods. 471 U.S. 261, 266-67 (1985) (“When

Congress has not established a time limitation for a federal cause of action, the settled practice has

been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy

to do so.”). The Ninth Circuit has not yet decided the limitations period for ADA Title III claims,

but explained that “the only conceivable options are California’s two-year personal injury provision

and its three-year period for ‘[a]n action upon a liability created by statute.’” Est. of Stern v. Tuscan

Retreat, Inc., 725 F. App’x 518, 526 (9th Cir. 2018) (emphasis in original) (citing Cal. Civ. Proc.

Code §§ 335.1, 338(a)). Assuming without deciding that Plaintiffs ADA claim is subject to the

more generous three-year limitations period, the ADA claim is time barred if it accrued prior to

December 26, 2016.4

Under California law, “a cause of action accrues at the time when the cause of action is

complete with all of its elements.” Fox, 35 Cal. 4th at 806 (internal quotation omitted). “Because

3 Plaintiff argues he intended to file his complaint on December 18, 2019, but filing errors caused his

complaint to be filed on December 26, 2019. As discussed below, it makes no difference to the

outcome here.

4 As discussed below, the outcome remains the same regardless of whether the two-year or three-year

statute of limitations applies.

Case 2:22-cv-08338-HDV-PD Document 67 Filed 09/15/23 Page 6 of 9 Page ID #:1521

‘the last element to occur is generally, as a practical matter, the injury to the future plaintiff,’ the

statute of limitations typically begins to run on the date of the plaintiffs injury.” Id.

However, California’s “discovery rule ... delays accrual until the plaintiff has, or should

have, inquiry notice of the cause of action.” Id. at 886. Under this rule, a cause of action accrues

and the statute of limitations begins to run when a plaintiff “at least suspects a factual basis, as

opposed to a legal theory, for its elements, even if he lacks knowledge thereof—when, simply put,

he at least ‘suspects ... that someone has done something wrong’ to him ....” Norgart v. Upjohn Co.,

21 Cal. 4th 383, 397 (1999) (quoting Jolly v. Eli Lilly & Co., 44 Cal.3d at 1110). “Plaintiffs are

required to conduct a reasonable investigation after becoming aware of an injury, and are charged

with knowledge of the information that would have been revealed by such an investigation.” Fox,

35 Cal. 4th at 808; see also Nguyen v. W. Digital Corp., 229 Cal. App. 4th 1522, 1553 (2014) (“[A]

potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable

investigation of all potential causes of that injury.”) (internal citation omitted) (emphasis added).

Here, Plaintiffs own allegations show that he had actual notice—or at the very least inquiry

notice—of his claims no later than 2013. By 2013, Plaintiff alleges he had received two medical

opinions claiming his symptoms were due to the June 12, 2009 injection of Magnevist. SAC f 124.

And further, in 2013, he was actively pursuing arbitration against Kaiser Permanente based on his

alleged “gadolinium toxicity” from Magnevist use.5 SAC If 125. While it is arguable whether

Plaintiff had notice of his claims in 2009 (when he suffered immediate symptoms from the

injection), or perhaps in 2010 (when he learned of the Magnevist connection) he had inquiry notice

at the very latest by 2013, when Plaintiff had received two medical opinions tying his symptoms to

the June 2009 Magnevist injection and had sued other parties for the same harm underlying his

5 Bayer requests that the Court take judicial notice of documents outside the pleadings in connection

with this Motion, including court documents from Plaintiffs 2013 arbitration against Kaiser

Permanente. See Corrected Request for Judicial Notice in Support of Motion to Dismiss Second

Amended Complaint, [Dkt. No. 38], Exhibits B-F. The find these court records the proper subject of

judicial notice. Courts “may take [judicial] notice of proceedings in other courts, both within and

without the federal judicial system, if those proceedings have a direct relation to matters at issue.”

Bias v. Monynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (internal citations and quotation marks

omitted).

Case 2:22-cv-08338-HDV-PD Document 67 Filed 09/15/23 Page 7 of 9 Page ID #:1522

claims here. At that point, the clock was running and the statute of limitations expired two or three

years later (depending on the claim), long before Plaintiff filed suit in this case.

Plaintiff disputes that he was on notice of his claims in 2013—even after suing a different

party for the same injury. Plaintiffs theory is that he sued only Kaiser, not Bayer, in 2013 because

he believed at the time that it was Kaiser’s decision to inject him with the dye that caused his

injury—not that the dye itself was defective. Opp. at 17. Plaintiff asserts that he was not on notice

of the claims at issue in this suit until he read an article6 about Chuck Norris and his wife suing

Bayer on the theory that Magnevist was a defective product.7 Opp. at 18.

But the law is clear that the discovery rule does not toll the statute of limitations where (as

here) Plaintiff knows he was injured, and even knows the cause of the injury, but does not know

exactly who is responsible for the harm:

[T]he plaintiff may discover, or have reason to discover, the cause of action even if he

does not suspect, or have reason to suspect, the identity of the defendant. That is because

the identity of the defendant is not an element of any cause of action. It follows that

6 Plaintiff asks the Court to take judicial notice of the December 26, 2017 Forbes article. Request for

Judicial Notice in Opposition to Defendants’ Mot. to Dismiss Second Amended Complaint [Dkt. No.

47], Exhibit A. While a court generally may not consider evidence or documents beyond the complaint

in the context of a Rule 12(b)(6) motion to dismiss, Federal Rule of Evidence 201(d) provides that

“[a] court shall take judicial notice [of an adjudicative fact] if requested by a party and supplied with

the necessary information.” A court may take judicial notice of any fact that is “not subject to

reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial

court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot

be reasonably questioned.” Id. A court may consider documents “whose contents are alleged in a

complaint and whose authenticity no party questions,” despite such documents not being physically

attached to the pleadings. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). While matters of

public record are proper subjects of judicial notice, a court may take notice only of the authenticity

and existence of the documents, not the veracity or validity of their contents. See Lee v. City of Los

Angeles, 250 F.3d 668 (9th Cir. 2001). The Court finds the existence of the article is not subject to

reasonable dispute and therefore takes judicial notice of the article.

7 This fact is not alleged in Plaintiffs operative complaint. Plaintiff states in his Opposition that this

fact was alleged in *[f 84 of the First Amended Complaint, [Dkt. No. 1-1] but inadvertently omitted

from the Second Amended Complaint, [Dkt. No. 30]. The Court will consider this allegation as paxt

of the record.

Case 2:22-cv-08338-HDV-PD Document 67 Filed 09/15/23 Page 8 of 9 Page ID #:1523

failure to discover, or have reason to discover, the identity of the defendant does not

postpone the accrual of a cause of action, whereas a like failure concerning the cause of

action itself does.

Norgart, 21 Cal. 4th at 399 (internal citations omitted).

Plaintiffs heavy reliance on Eidson v. Medtronic, Inc., 40 F.Supp.3d 1202 (2014 N.D. Cal) is

misplaced. The Plaintiff in Eidson had no reason to know the medical device was implanted in him

during his surgery in 2005. Id. at 1216-17. No treating physicians informed him that "the product

was used during surgery and his doctors informed him that his continued pain was “due to a

biological phenomenon in terms of the way [his] body uniquely reacted to surgery.” Id. at 1219.

The statute of limitations was tolled in Eidson because Plaintiff had no reason to suspect his

symptoms were due to any wrongdoing at all.

Here, Plaintiff knew the exact product used during his scan by August 2010 and knew

wrongdoing involving that very product caused him injury by 2013 at the latest, as evinced by his

lawsuit against Kaiser. That is all that is required, even under the discovery rule, for Plaintiffs

claims to accrue. Jolly, 44 Cal. 3d at 1110 (“Under the discovery rule, the statute of limitations

begins to run when the plaintiff suspects or should suspect that her injury was caused by

wrongdoing, that someone has done something wrong to her.”). Stated differently. Plaintiff by 2013

had actual or constructive knowledge of every element of the claims at issue.8 The fact that Plaintiff

For the same reason, fraudulent concealment will not toll the statute of limitations on Plaintiffs

claims. The purpose of the fraudulent concealment doctrine is to prevent a defendant from “concealing

a fraud ... until such a time as the party committing the fraud could plead the statute of limitations to

protect it.” Bailey v. Glover, 88 U.S. 342, 349 (1874). Thus, “[a] statute of limitations may be tolled

if the defendant fraudulently concealed the existence of a cause of action in such a way that the

plaintiff, acting as a reasonable person, did not know of its existence.” Hexcel Corp. v. Ineos

Polymers, Inc., 681 F.3d 1055, 1060 (9th Cir. 2012). The plaintiff bears the burden of pleading and

proving fraudulent concealment. Id.-, see also Conmar Corp. v. Mitsui & Co. (U.S.A.), Inc., 858 F.2d

499, 502 (9th Cir. 1988). To plead fraudulent concealment, the plaintiff must allege that: (1) the

defendant took affirmative acts to mislead the plaintiff; (2) the plaintiff did not have “actual or

constructive knowledge of the facts giving rise to its claim”; and (3) the plaintiff acted diligently in

trying to uncover the facts giving rise to its claim. Hexcel, 681 F.3d at 1060 (emphasis added); see

also Conmar, 858 F.2d at 502; Beneficial Standard Life Insurance Co. v. Madariaga, 851 F.2d 271,

276 (9th Cir. 1988). Where a Plaintiff has actual notice of facts giving rise to his claim, fraudulent

concealment will not toll the statute of limitations.

•

• Case 2:22-cv-08338-HDV-PD Document 67 Filed 09/15/23 Page 9 of 9 Page ID #:1524

did not articulate or advance a claim against Defendants under an alternative product defect theory

has no bearing on the application of tolling, and no case cited by Plaintiffs opposition holds

otherwise.9

IV.

CONCLUSION

For the reasons stated herein. Defendants5 Motion is granted and the Second Amended

Complaint is dismissed. Although generally a court granting a motion to dismiss should also grant

leave to amend, “leave to amend need not be granted when ‘any amendment would be an exercise in

futility,’ such as when the claims are barred by the applicable statute of limitations.” Hoang v, Bank

ofAm., N.A., 910 F.3d 1096,1103 (9th Cir. 2018) (quoting Steckman v. Hart Brewing. Inc., 143 F.3d

1293, 1298 (9th Cir. 1998)). Plaintiff has had nearly four years of litigation and two amendments to

allege further facts that would avoid the statute of limitations. He has not done so, and Ms

opposition similar ly fails to address what other set of facts could be alleged in a third amended

complaint to save the claims. Because the Court concludes that any amendment on these claims

would be futile, the dismissal is made without leave to amend.

IT IS SO ORDERED.

Dated: September 15, 2023

Hemau D. Vera

United States District Judge

9 Defendants also argue that Plaintiff s product liability claims fail because they are preempted by

federal law. See Mot. at 21-23. Because the Court finds the claim to be clearly time-barred, it does

not reach the question of preemption. For the same reason, the Court does not address the alternative

arguments made by Defendants relating to the Unruh Act. See Mot. at 23-25.

‘ '«

Case 2:22-cv-08338-HDV-PD

Document 79

Filed 10/29/24

Page 1 of 3 Page ID

#:1564

NOT FOR PUBLICATION

FILED

UNITED STATES COURT OF APPEALS

OCT 29 2024

FOR THE NINTH CIRCUIT

MICHAEL DEUSCHEL,

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 23-2600

Plaintiff-Appellant,

D.C.No.

2:22-cv-08338-HDV-PD

MEMORANDUM*

BAYER HEALTHCARE

PHARMACEUTICALS INC.; BAYER

HEALTHCARE LLC; BAYER

CORPORATION; MCKESSON

CORPORATION; MCKESSON MEDICAL

SURGICAL, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Heman Diego Vera, District Judge, Presiding

Submitted October 25,2024**

Pasadena, California

Before: IKUTA and BRESS, Circuit Judges, and BASTIAN, District Judge.***

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

The Honorable Stanley Allen Bastian, United States District Judge for

the Eastern District of Washington, sitting by designation.

Case 2:22-cv-08338-HDV-PD

Document 79

Filed 10/29/24

Page 2 of 3 Page ID

#:1565

Michael Deuschel appeals the district court’s order dismissing his suit

against Bayer Healthcare Pharmaceuticals, Inc. and other defendants without leave

to amend. We have jurisdiction pursuant to 28 U.S.C. § 1291.

The district court did not err in holding that Deuschel’s product-liability

claims were time-barred by the applicable two-year statute of limitations.1 Cal.

Civ. Proc. Code § 335.1. Deuschel knew or should have suspected that his injury

resulted from Magnevist when two medical professionals told him, in 2013, that

his symptoms were related to the Magnevist injected into his body for a procedure.

Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 813 (2005). Because a

reasonable investigation would have revealed the factual bases for his claims in

2013, Deuschel’s claims, which were not brought until 2019, are time-barred. Id.

at 803. Indeed, in 2013, Deuschel brought a separate claim against his hospital

relating to the use of Magnevist. Fox is not to the contrary; as in Deuschel’s case,

the statute of limitations in Fox commenced when the plaintiff learned that the

defendant’s medical device had been used during the plaintiffs surgery. Id. at

811.

The district court did not abuse its discretion in dismissing the complaint

Deuschel has forfeited any claim that the district court erred in dismissing

his negligence, Americans with Disabilities Act, and Unruh Civil Rights Act

claims by failing to raise those claims on appeal. Indep. Towers of Washington v.

Washington, 350 F.3d 925, 929 (9th Cir. 2003).

23-2600

Case 2:22-cv-08338-HDV-PD

Document 79 Filed 10/29/24

#:1566

Page 3 of 3 Page ID

without leave to amend. See Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048

1052 (9th Cir. 2003). Deuschel did not proffer any additional facts that would

avoid the statute-of-limitations bar, and the court correctly determined that

amendment would have been futile.

AFFIRMED.

23-2600

■

Case: 23-2600,12/10/2024, DktEntry: 50.1, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

MICHAEL DEUSCHEL,

Plaintiff-Appellant,

BAYER HEALTHCARE

PHARMACEUTICALS INC.; et al.,

DEC 10 2024

No. 23-2600

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

D.C. No.

2:22-cv-08338-HDV-PD

Central District of California,

Los Angeles

ORDER

Defendants-Appellees.

Before: IKUTA and BRESS, Circuit Judges, and BASTIAN, District Judge.*

The panel has unanimously voted to deny the petition for panel rehearing.

Judges Ikuta and Bress voted to deny the petition for rehearing en banc, and Judge

Bastian so recommended. The petition for rehearing en banc was circulated to the

judges of the court, and no judge requested a vote for en banc consideration.

The petition for rehearing or rehearing en banc, at Dkt. No. 49, is

DENIED.

The Honorable Stanley Allen Bastian, United States District Judge for the

Eastern District of Washington, sitting by designation.

CERTIFICATE OF COMPLIANCE

No.

(

Michael Deuschel,

Petitioner(s)

Bayer Healthcare Pharmaceuticals Inc., et al.

Respondent(s)

As required by Supreme Court Rule 33.1(h), I certify that the petition for a

writ of certiorari contains 8,000 words and is 33 pages long, excluding the parts of

the petition that are exempted by Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and correct.

Executed on the 10th day of March, 2025,

(

7 (Signature)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.