EAST ST. LOUIS – Cooperation among federal court and state courts in litigation over Bayer contraceptives Yasmin and Yaz broke down and a firestorm ensued last week.

U.S. District Judge David Herndon, who presides over Yasmin and Yaz cases from federal courts, said on Jan. 20 that the firestorm started over depositions.

He said depositions should stop until he can write a new protocol for them and submit it to state court judges in Pennsylvania, New Jersey and California.

"These depositions have been anything but efficient," he said during a hearing.

"They have been anything but cooperative. I can't imagine the time that has been wasted...

"You give direction and you're told the direction wasn't followed."

The crisis came up at the end of the hearing on a separate motion, without any record of it on Herndon's docket.

Lawyers in Herndon's court knew the details but didn't discuss them.

"We've got to get back to practicing good law and quit this bickering for heaven's sake," he said.

"I can't enter an order until the state judges are on board. If they are not on board, then my order doesn't mean anything. If one of those judges bucks on me, then we've got a problem."

Herndon said he received briefs from all over the country and had a telephone conference with Judge Sandra Moss of Philadelphia.

He said plaintiffs want to bring back German witnesses he ordered Bayer to produce.

"That's not in my jurisdiction," Herndon said.

He said he has done all he can to include state court judges.

He said he talked to them about joint hearings on qualifications
of experts.

"It bothers me that one lawyer asks questions and one can't," he said. "That shouldn't have happened."

Herndon cut loose at the close of a hearing on a motion from Bayer to limit production of documents from other countries.

The hearing itself went smoothly, because Bayer lawyers and the plaintiff steering committee had mostly resolved disputes over foreign documents.

Herndon said neither side was comfortable with the "warp speed" of his proceedings.

"One day we are going to find out the truth of this case, whether there is liability or not," he said.

"It's not my job to make people comfortable. It's my job to move this litigation along."

Roger Denton of St. Louis represented plaintiffs at the hearing.

Adam Hoeflich and Susan Weber of Chicago represented Bayer.

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