Herndon will hold Yaz and Yasmin bellwether trials if mediation fails

Steve Korris Jan. 12, 2012, 5:45am



EAST ST. LOUIS – U.S. District Judge David Herndon, who canceled a Jan. 9 trial over Bayer contraceptives and ordered mediation instead, followed up by ruling that trial will start on April 30, if mediation in good faith fails.

In a Jan. 10 clarification of a Dec. 31 order, he warned that if Bayer and plaintiffs don't act in good faith, he'll start remanding cases to districts where they began.

Herndon presides over suits from many federal courts by appointment of the U.S. Judicial Panel on Multi District Litigation.

His New Year's Eve order held in abeyance nine "bellwether trials" that would have shaped mass settlement of more than 10,000 injury claims.

Claims include gall bladder damage and embolisms in hearts and veins.

He abandoned the bellwether plan a day after Bayer moved to exclude expert opinions of former Food and Drug Administration Commissioner David Kessler.

Kessler had alleged conflicts of interest among current FDA committee members who found no cause to remove contraceptives Yasmin and Yaz from the market.

Bayer lawyer Susan Weber of Chicago challenged Kessler's opinions on Dec. 30, writing that he tried to usurp the role of the jury.

"To the extent that Dr. Kessler seeks to opine that the FDA has been defrauded in some manner by the advisory committee members whose impartiality he questions, that is nothing more than rank speculation and innuendo that has no proper place in this trial," she wrote.

"Indeed, Dr. Kessler's status as a former FDA commissioner does not authorize him to testify as a shadow FDA, second guessing determinations by the agency," she wrote.

She wrote that his report on Bayer payments to committee members misrepresented facts.

A plaintiff steering committee tried to involve Herndon in FDA business in October.

Committee lawyers moved to strip confidentiality from 1,241 pages of documents they had obtained in his court, so they could present the documents to two FDA committees.

They asserted a constitutional right to petition the government.

They urged Herndon to override German law that would subject Bayer employees to criminal prosecution for privacy violations.

Herndon denied the motion in November, finding litigants do not have an unfettered First Amendment right to disseminate documents obtained through discovery.

He wrote that dissemination of 28 documents would violate German privacy laws.

He wrote that dissemination of others would prove economically advantageous to Bayer's competitors.

On Dec. 8, a joint meeting of the FDA committees ended without a recommendation to pull Yasmin and Yaz and from the market.

Kessler, who had previously submitted an expert report, submitted another on Dec. 26.

"Certain members of the advisory committee did have conflicts of interest such that a reasonable person with knowledge of the relevant facts could question the member's impartiality," Kessler wrote.

When Weber moved to exclude his opinions about the meeting, she also challenged those of expert Burt Gerstman.

"Dr. Gerstman is not a mind reader," she wrote.

Rather than hear the motions, Herndon called off the trial the next day.

He appointed law professor Stephen Saltzburg of Washington to mediate.

Lawyers sought clarification, and Herndon supplied it.

"The court hoped the bellwether verdicts would help to shape the parties' expectations and aid in the valuation of cases, thereby furthering the goal of facilitating settlements," he wrote.

"Clearly, a plaintiff who is not satisfied with all settlement offers that come her way in any litigation has the option to reject all such offers, including the last one, and proceed to a trial that results in a verdict rendered by a jury or a judge.

"However, a strategy that contemplates trying thousands, even hundreds or dozens of cases of this nature is a disingenuous tactic for both sides given the expense on each side of the issue.

"The underlying rationale of ordering bellwether trials was that such trials would provide the parties with a representation of the value of the mill run case in this litigation.

"Since there are a variety of alleged injuries involved in this court, a number of bellwether trials were contemplated.

"As the trial date approached for the first bellwether case, Kerry Sims v. Bayer Corp., et al, it became clear that the bellwether process had completely broken down.

"Considering the totality of the circumstances, including the manner of preparation undertaken by the parties and the status of that preparation, the court concluded that obtaining bellwether verdicts at this time would not produce the hoped for results.

"Although bellwether verdicts will not presently be used to inform the process, the ultimate goal of facilitating settlement remains; mediation is simply an alternative method for achieving this end."

He wrote that discovery in bellwether cases would continue because it would provide information critical to their valuation.

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