Maag drops Yaz suit after Bayer removes it to federal court

Steve Korris Aug. 19, 2011, 4:22am


EAST ST. LOUIS – Thomas Maag dropped a client's suit against drug maker Bayer five days after Bayer removed it from Madison County to federal court.

On Aug. 17, Maag moved to voluntarily dismiss Charese Shadwick's claim that oral contraceptive Yaz injured her.

Maag asked U.S. District Judge David Herndon for an order without prejudice, so Shadwick might file her suit again.

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

Shadwick sued Bayer in Madison County on July 11, claiming she suffered gall bladder removal and other severe injuries including future thrombo embolic events.

She claimed she needed lifelong medical treatment, monitoring and medications.

She named seven Bayer companies and Walgreen as defendants.

Bayer removed the suit to federal court on Aug. 12, claiming Maag fraudulently defeated federal jurisdiction by joining Walgreen, an Illinois company, as defendant.

Bayer's removal notice amounted to a defense of Walgreen.

Terry Luckenhoff of St. Louis wrote that there was no reasonable possibility that Shadwick could prevail against a pharmacy in Illinois state court.

"Plaintiff did not allege, nor could she allege, that Walgreen Co., a pharmacy, designed or manufactured the Yaz," he wrote.

He wrote that she didn't allege Walgreen incorrectly filled, dispensed or labeled her prescription.

He wrote that she didn't allege Walgreen knew or reasonably could have known about alleged risks of Yaz and Yasmin.

He wrote that she didn't allege Walgreen acted in complicity with Bayer.

He defended his client too, in an Aug. 15 answer to the complaint.

He wrote that the First Amendment protects Bayer's commercial speech.

He wrote that Herndon should abstain from adjudication of claims relating to warnings and labeling in deference to the Food and Drug Administration.

He wrote that Illinois law affords special protection to pharmacists, holding they have no general duty to warn customers directly about potential side effects of a prescription.

He wrote that Bayer's marketing complied with state consumer fraud law.

He attacked the law, arguing it "unconstitutionally burdens interstate business practices relating to prescription drugs, which are heavily regulated by the FDA."

Two days later, Maag and Shadwick bowed out.

Earlier this year, Maag left Brian Wendler's law firm in Edwardsville.

Prior to that, he litigated class actions for the former Lakin Law Firm.

His motion placed his address at 22 West Lorena Ave. in Wood River.

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