'Yaz' lawyer files brief under seal in federal court

Steve Korris Sep. 16, 2010, 1:00pm


EAST ST. LOUIS – Lawyers suing drug maker Bayer claim they have good reasons to investigate a product they haven't sued over, but their reasons remain secret.

Roger Denton of St. Louis, leading national litigation over contraceptives Yasmin and Yaz, sealed a Sept. 9 brief about a different contraceptive, Natazia.

He submitted 10 exhibits to Multi District Judge David Herndon, and sealed them.

Denton didn't ask Herndon for a sealing order, apparently blocking public access by his own choice.

Herndon held a status conference on Sept. 16, writing afterwards that plaintiffs moved to amend a case management order "for the purpose of addressing redaction issues."

He set a hearing for Tuesday, Sept. 21.

He presides over Yasmin and Yaz suits 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.

Bayer produced 30 million pages of documents on Yasmin and Yaz, Terry Lueckenhoff of St. Louis wrote for Bayer in August.

When Denton demanded millions of pages on Natazia, a new oral contraceptive with different ingredients, Lueckenhoff sought relief from Herndon.

"Not one plaintiff in the coordinated proceedings has alleged any wrongdoing with respect to Natazia or any injury or loss relating to Natazia," he wrote on Aug. 9.

He wrote that plaintiffs sought records about its chemical structure, clinical development, marketing and promotion.

"Responding would require the disclosure of highly sensitive information, like patents and formulation data," he wrote.

He wrote that plaintiffs also sought discovery on another drug, Angeliq.

In response, Denton composed an argument and sealed it.

The litigation gathers momentum as an Oct. 12 deadline approaches to choose cases for trial.

On Sept. 14, Herndon ordered Bayer to make available to plaintiffs a "fully functional and complete Bayer-licensed copy" of a database belonging to contractor Clintrace.

Bayer couldn't have copied the database without breaching its license agreement.

"This copy of Clintrace will be made available in a private room in Pittsburgh, Pennsylvania at a Bayer facility," Herndon wrote.

"Plaintiffs' counsel shall be permitted to sign into security as 'John Attorney plus one' in order to maintain the confidentiality of the identity of their experts," he wrote.

Bayer can't try to determine what searches plaintiffs ran, he wrote, and plaintiffs can't try to copy Clintrace software or inspect its source code.

Herndon held Bayer responsible for technical support and maintenance.

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