Bayer can't elicit testimony from employees on Yaz usage, Herndon rules

Steve Korris Jul. 8, 2011, 3:10am


EAST ST. LOUIS – Drug maker Bayer can't ask past and present employees if they or their families use oral contraceptives Yasmin, Yazand Ocella, U.S. District Judge David Herndon ruled on June 29.

He rejected Bayer's bid to elicit testimony about personal use in depositions for national litigation of claims that the drugs injured gall bladders and damaged blood circulation.

"Just as the court would not permit every other allegedly injured plaintiff in this broad ranging litigation to come to trial and tell the jury her story to bolster another plaintiff's case, it will not let a few employees say they think the product is great," he wrote.

"The only evidence that is relevant is the particular plaintiff's evidence and the science that relaters to that plaintiff and to the product as a whole," he wrote.

"It would be highly prejudicial for the jury to hear from some people who say they take the product, have their daughters take the product and haven't one day of health problems as a result of it," he wrote.

He limited the order to multi district pretrial proceedings in his court, writing that he wouldn't tie the hands of district judges who will conduct individual trials.

Herndon composed a public response to a dispute he had kept secret.

Lead plaintiff lawyer Roger Denton of St. Louis objected to questions about personal use on June 6, in email that Herndon didn't post on the docket.

According to Herndon's order, Denton argued that if Bayer could ask about personal use, plaintiffs could discover the medical histories of all Bayer employees.

Denton argued that personal use testimony would invite jurors to draw an improper and prejudicial conclusion that company use equates to product safety, Herndon wrote.

Bayer's email reply didn't reach the docket either.

Herndon denied the request for medical histories of all Bayer workers.

He settled another deposition dispute on June 29, ruling that plaintiffs can't design questions to elicit the identity of documents Bayer lawyers compiled.

"Forcing Bayer to disclose the compilation would implicitly reveal the thought processes of the attorney who selected the documents and would allow plaintiffs to glean which documents, out of the millions already produced, opposing counsel believes are legally significant," he wrote.

"Counsel's designation and compilation of materials to review with a witness prior to his or her deposition reflects counsel's thought processes and opinions with regard to which documents are legally significant and is therefore protected from disclosure under the work product doctrine," he wrote.

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