Herndon rejects group trials in Bayer contraceptives litigation

Steve Korris Aug. 25, 2011, 8:37am


EAST ST. LOUIS – U.S. District Judge David Herndon disappointed lawyers suing Bayer over injuries from contraceptives by rejecting group trials, and he surprised both sides by pledging to bring about a settlement.

In an Aug. 18 order denying consolidation of cases for two trials next year, he wrote that he was working on a process to engage the parties in settlement discussions.

"This comes as a surprise to the parties since the court has not, until this moment, revealed this plan to the parties," he wrote.

He assured them they will have input at an appropriate time.

"No party has yet excluded the possibility of engaging in meaningful settlement discussions; there have only been disagreements about when those efforts should begin," he wrote.

For the moment, he intends to hold three bellwether trials for women claiming two kinds of circulatory disorders and a gall bladder injury.

He and lawyers chose them as reliable guides for mass trials or mass settlement of thousands of claims from federal courts around the nation.

He plans to start the first trial in January, on a claim of circulatory injury.

The docket shows "Sims" as plaintiff, but four women with that name sued Bayer.

As plaintiff lawyers prepared for the Sims trial, they asked Herndon to expand the second and third trials into group events.

They had undercut their position weeks earlier, however, by objecting to a bid from Bayer to depose a group of plaintiffs on a random basis.

Bayer lawyers sought random depositions after finding errors in fact sheets of plaintiffs, and Herndon ruled they could depose the first 100 plaintiffs who sued.

When plaintiff lawyers moved for consolidated trials, he spotted a contradiction.

He wrote that "when a fair number of plaintiff fact sheets have proven inaccurate, the court determined the best way to move the litigation to the next step was to allow a number of plaintiff depositions to be taken, a step vociferously opposed by plaintiffs."

"Now plaintiffs assert that the litigation is not moving fast enough and consolidated bellwether trials are in order," he wrote.

He wrote that nothing has changed and trials would proceed as originally contemplated.

"A great deal of time and effort went into fashioning a trial plan," he wrote.

On Aug. 19, he adopted rules for picking plaintiffs in the gall bladder trial.

Each side will provide four cases to the other on Sept. 7.

Each side can veto a single case by Sept. 9.

Herndon will receive names on Sept. 14, without knowing which side picked them.

He will receive two summaries of each case, without knowing the source of either.

He will pick a case and three backup cases by Sept. 21.

For the third trial he will pick a circulatory case the same way, three months later.

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