Herndon orders plaintiff lawyer to stop asking Bayer employee about Holocaust

By Steve Korris | Mar 3, 2011


EAST ST. LOUIS – Mike Papantonio, plaintiff lawyer and radio star, badgered a Bayer employee about the Holocaust in a deposition about oral contraceptives on Feb. 25.

Bayer lawyers stopped the deposition, called U.S. District Judge David Herndon, and asked him to replace Papantonio.

Herndon didn't replace him but curbed his tongue, according to minutes of the call.

"The Court directs the examiner to refrain from further questioning on topics related to the Holocaust," Herndon wrote.

He also cut off questions about the witness's criminal culpability.

Herndon presides over thousands of federal suits against Bayer by appointment of the U.S. Judicial Panel on Multi District Litigation.

The suits claim contraceptives Yasmin, Yaz and Ocella injured women's gall bladders and blood vessels.

Herndon's report on the phone call didn't identify the witness, but he wrote that the deposition was important and strained emotions were understandable.

"It is clearly the intent of the plaintiffs to take a hard charging approach to this particular witness because of the nature of her position with Bayer and because of what they feel her role is in the question of liability in this case," he wrote.

He wrote that his role is to make sure everything is done properly.

"For example, even though it is quite shocking the way Mr. Papantonio started the deposition, the Court is not sure if that is an inappropriate question," he wrote.

"It is hard hitting and off putting, but not inappropriate," he wrote.

He wrote that plaintiffs acted concerned about the witness's culpability.

"To continually question her as to whether or not she knows she is culpable is intimidating to her and perhaps even obstructs her answers," he wrote.

"If they want to ask if she is aware of criminal investigations, there is not a problem with that," he wrote.

He required better behavior from Bayer too.

He wrote that objections to questions and requests to rephrase questions should not be used as defensive mechanisms.

"If the witness does not understand a question, it is an appropriate response, but it strikes the Court that it is a defensive mechanism and if that is the case, it is not appropriate," he wrote.

"The Court directs the witness be advised to listen closely to the questions and not be evasive or non responsive to the questions," he wrote.

"It is clear this is a very difficult deposition," he wrote.

"Questions should be a single question and not compounded," he wrote.

His report shows Adam Hoeflich, Al Bixler, Gerry Lowry, Chris Seeger and Susan Weber on the call for Bayer.

It shows Roger Denton, Mark Neimeyer, Michael London, Seth Katz and Papantonio on the call for plaintiffs.

Papantonio, Robert Kennedy Jr., and Sam Seder are hosts of "Ring of Fire," which ran for six years on Air America and now runs on Westwood One.

Papantonio practices at Levin Papantonio Thomas Mitchell Rafferty & Proctor, in Pensacola, Fla.

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