Herndon seals order involving witness production in Yaz MDL

Steve Korris Aug. 18, 2011, 2:12pm


EAST ST. LOUIS – U.S. District Judge David Herndon rendered a profound decision on his jurisdiction over European executives of drug maker Bayer, and he sealed it.

In an Aug. 18 order, he secretly resolved a dispute over whether Bayer must produce three Europeans for depositions about oral contraceptives.

The docket shows only that he signed an order "regarding production of witnesses."

He presides over national litigation of claims that contraceptives Yasmin, Yaz and Ocella damaged gall bladders and blood vessels.

He plans trials next year in cases lawyers picked to shape mass settlement.

On Aug. 12, Bayer asked him to bar depositions of individuals it identified as van der Werff, Riemann and Trudeau.

Susan Weber of Chicago wrote that as a matter of Dutch law, Bayer can't compel van der Werff to testify.

"Mr. van der Werff has stated that he will not voluntarily testify in these proceedings," she wrote.

She wrote that if plaintiffs really want to depose him, procedures are available under the Hague Convention on taking of evidence abroad.

She wrote, "Plaintiffs have a full opportunity to develop evidence on regulatory activity in Europe through other witnesses."

She wrote that a Dr. Fiedler answered their questions and didn't defer to van der Werff.

She blacked out the next five paragraphs from the public record.

She wrote that "plaintiffs are inviting a jurisdictional battle that would take months to resolve and provide a huge drain on the resources of the parties and the court."

She wrote that in seeking to depose Riemann, they relied on six email exchanges that actually undermined their position.

She blacked out all six.

She wrote, "In short, not one of these emails shows that Dr. Riemann has any unique or specialized knowledge that would demonstrate plaintiffs' need for his deposition."

She wrote that in seeking to depose Trudeau, they pointed to five documents.

She blacked out three.

In the other two, Trudeau thanked someone for an update and received email about communications to the sales force after an adverse event.

"These documents do not demonstrate unique or specialized knowledge of Mr. Trudeau that would warrant his deposition," she wrote.

She wrote that plaintiffs deposed more than 50 Bayer witnesses and would depose more.

She wrote that Bayer responded to 498 interrogatories and produced 84 million pages of documents.

Bayer also wants Herndon to prevent plaintiffs from publishing 522 case summaries that German researchers prepared in a study of 50,000 European women.

On Aug. 16, John Galvin of St. Louis wrote that the summaries contain private data from identifiable persons.

"Plaintiffs here, who put their own medical history at issue by filing lawsuits, designate their own medical records as confidential," he wrote.

"Study participants who provided personal details of their medical history did not do so with the expectation that summaries of their medical information could be released publicly in the United States," he wrote.

He wrote thatpublication would place Bayer at risk of violating German law.

He wrote, "The case summaries do not contain individual names of study participants, but identification is nevertheless possible."

He wrote that third parties might identify patients based on medical history alone.

He wrote that violations of German data protection law are punishable by fines, injunctive relief, and imprisonment up to two years.

"Moreover, data protection enforcement agencies have the authority to shut down the business operations of companies found to be in violation," he wrote.

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