Bayer produces 10 million documents for 'Yaz' claimants; Plaintiffs claim faulty page breaks

Steve Korris Jul. 29, 2010, 4:12pm


EAST ST. LOUIS – Bayer drug companies have yielded more than 10 million pages of documents to women suing over oral contraceptives Yasmin and Yaz, yet some of the lawyers for the claimants haven't completed simple fact sheets.

Now U.S. District Judge David Herndon, responsible for about 2,000 Yasmin and Yaz suits from around the nation, gently nudges them to hand in their overdue homework.

He posted an order on July 9, reminding them of their obligation to provide name, social security number, basic facts of their claims, and authority to release medical records.

Bayer had moved a day earlier to dismiss claims of 11 plaintiffs in six suits, for lack of fact sheets.

One of the suits started in Madison County, where Thomas Maag of Edwardsville filed it last year on behalf of Cathy Walton.

Bayer removed it to federal court, and Maag moved to remand it to Madison County.

Herndon denied the remand motion, finding Maag fraudulently added claims against an Illinois defendant to defeat federal jurisdiction.

Herndon presides over Yasmin and Yaz cases from federal courts around the nation by appointment of the U.S. Judicial Panel on Multi District Litigation.

Plaintiffs claim the drugs caused heart attacks, strokes, embolisms, clots, and diseases in gall bladders and kidneys.

They claim Bayer over promoted the drugs and concealed their risks.

Among the mass of plaintiffs, two propose to lead national consumer class actions.

The firefighters union in Philadelphia seeks to lead a national racketeering class action for pension funds and other third parties, alleging wire and mail fraud.

Bayer recently estimated its document production at 10 million pages, though the quality of the pages hasn't suited plaintiff lawyers.

In a telephone conference with lawyers on June 23, Herndon struggled to understand whether or not Bayer disobeyed a document production order he signed.

Plaintiff lawyers protested over faulty page breaks, and defense lawyers said they scanned more than 90 percent of pages correctly.

Defense lawyers said they worked to solve the problem.

For plaintiffs, Michael Burg of Englewood, Colo., said the way documents were kept in the normal course of business were absurd.

He said it would take a secret code to map the way through them.

For Bayer, Janet Abaray of Cincinnati said she could never find an entire document from beginning to end with all attachments.

She said things clumped together, search capacity didn't work, and components were not properly coded.

Her colleague Timothy Coon of White Plains, N.Y. said pages were scanned out of order because the scanning team didn't go through boxes in sequence.

Herndon asked Burg if he had any information that they did it purposefully to frustrate the litigation.

Burg said he didn't know because he didn't take depositions about it.

His colleague Seth Katz of New York City said an expert was available to provide information on page break technology.

Herndon asked Katz if his lawyer could layer in his technology.

Katz said he would talk to them, adding that he didn't know if
paying his own vendor was an equitable resolution.

Abaray said Bayer's original handling of documents made a search impossible.

Herndon said he wasn't in position to rule that Bayer complied or didn't comply with his production order.

He told plaintiffs to send him a letter if Bayer didn't comply, and he said he would hold another telephone conference if he received a letter.

At a status conference in court on July 1, Burg and Bayer lawyer Adam Hoeflich of Chicago jointly reported great progress on the document problem.

Hoeflich, however, said he hadn't received fact sheets in more than 100 cases.

He said plaintiffs had voluntarily dismissed 27 cases.

Since then, plaintiffs have dismissed 19 more.

Herndon's master docket obscures much of the action, for he has ordered both sides to post case specific pleadings in separate member case dockets.

Bayer's motion to dismiss for lack of fact sheets appears on member case dockets but not on the master docket.

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