Bayer can depose first 100 plaintiffs in Yaz MDL, Herndon rules

By Steve Korris | Jul 28, 2011

EAST ST. LOUIS – U.S. District Judge David Herndon ruled on July 25 that Bayer can depose the first 100 plaintiffs among thousands and compare their testimony to fact sheets their lawyers filed in a case involving oral contraceptives.

Plaintiffs allege Yaz, Yasmin and Ocella injured gall bladders and harmed circulation.

Herndon found defects in more than a third of the sheets Bayer checked against deposition testimony of 24 plaintiffs in "bellwether trials" he plans to start next year.

"In one case, the revisions were reportedly so extensive as to involve identification of additional treating physicians, changes in dates of treatment and hospital admissions, identification of additional pharmacies, identification of additional medical conditions and medications, and new information regarding the use of oral contraceptives," Herndon wrote.

"In another case, the plaintiff allegedly misidentified the prescriber of her Yaz prescription on the plaintiff fact sheet and failed to identify the pharmacy at which her Yaz prescriptions were filled.

"The plaintiff fact sheet deficiencies identified by the defendants raise questions about the credibility of the information that has been obtained.

"The Court cannot achieve its goals if either side feels that information gathered during the discovery process lacks credibility."

Herndon wrote that without accurate information, meaningful evaluation of litigation cannot occur and the entire process will waste everyone's time and resources.

Depositions would restore confidence in the process "and may ultimately serve as a catalyst for the just and efficient resolution of this litigation," he wrote.

Herndon deferred a decision on depositions of doctors who treated the 100 he picked.

He wrote that a plaintiff steering committee resisted a random sample but offered no better method.

He wrote that they deposed more than 60 Bayer witnesses and seek to depose 16 more.

Herndon presides over about 6,400 suits from federal courts around the nation by appointment of the U. S. Judicial Panel on Multi District Litigation.

Bellwether trials help settle mass litigation by showing a range of potential judgments.

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