Herndon sets bellwether trials in Yasmin, Yaz MDL

Steve Korris Oct. 15, 2010, 1:24am


EAST ST. LOUIS – U.S. District Judge David Herndon won't let plaintiffs slow down his aggressive schedule for trials against Bayer over oral contraceptives Yasmin and Yaz.

On Oct. 13, he set "bellwether trials" next September and in January and April of 2012.

Mass litigation judges employ bellwether trials to establish a range of settlement values for all cases.

At a hearing a day earlier Michael Burg of Englewood, Colo., pleaded for four more months on behalf of about 4,000 plaintiffs.

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

Though he denied a delay, he granted Burg's request to reduce the number of cases each side must pick as possible bellwethers, from 25 to 12.

He warned both sides that if they foul up the selection process, he will pick cases.

He wrote that Burg contradicted much of what plaintiffs originally advocated.

"In keeping with the aggressive schedule and demeanor all agreed upon when this MDL was established, while keeping fairness and a just adjudication of the issues at the fore, the court believes it has arrived at a fair adjustment to its previously established plan in order to alleviate Plaintiffs' concerns yet achieve the goals established early on," Herndon wrote.

Spotting another contradiction in a threat that plaintiffs might challenge his jurisdiction, he promised to withdraw the bellwether plan unless all 24 waive venue objections.

"The reason is quite simple, plaintiffs in the course of arguing, both orally and in writing, of the importance of the success of the bellwether plan and the randomization of the selection process to keep one side or the other from having the right to veto a case's selection by virtue of playing the venue objection card," Herndon wrote.

"Now, surprisingly, after taking such a strong position, it is the plaintiffs who are threatening the court with the Lexecon card and not the defendants.

"An aggressive trial schedule will be pursued by the court, whether the parties participate in the selection process in order to make sure it has a true bellwether character, or whether the court selects the cases, thereby losing the ability to select true mill run cases.

"Parties will then be left with gleaning what they can from the cases selected."

Each side will pick four pulmonary embolism cases, four vein embolism cases, and four gall bladder injury cases.

They will exchange lists and exercise up to four vetoes.

They will send the remaining names to Herndon, who will pick individual plaintiffs without knowing which side chose them.

The bellwether plan does not include heart attack and stroke
cases, which make up about a tenth of all cases.

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