Madison - St. Clair Record

Tuesday, August 20, 2019

Parents compensated for daughter’s sport injury also seeking money from Bayer for same injury

By The Madison County Record | Nov 29, 2017

EAST ST. LOUIS – Parents who have received $1.6 million in benefits for their daughter through a university’s insurance for a sports injury have sought damages from drug maker Bayer for the same injury all the while. 

Now Lester and Linda Hamilton of Oklahoma allege bad faith against the insurer paying the bills, Mutual of Omaha, for involving itself in the Bayer action. 

For its part, Bayer wants U.S. District Judge David Herndon to reopen discovery that he closed a year ago. 

A year ago, Mutual of Omaha hadn’t entered the picture. 

Michael London of New York sued Bayer for the Hamiltons in 2011, filing the action in multi district proceedings before Herndon. 

The Judicial Panel on Multi District Litigation had picked Herndon to handle claims that Yaz and Yasmin birth control pills damaged deep veins and gall bladders. 

London wrote that Kaitlin Hamilton used Yaz or Yasmin from 2008 to 2010.  

He wrote that she suffered deep vein thrombosis and pulmonary embolism causing respiratory arrest and cerebral ischemia. 

“The injuries and damages sustained by plaintiff, Kaitlin Hamilton, were caused by defendants’ Yaz/Yasmin,” London wrote. 

He sought compensatory damages, health care costs, and medical monitoring. 

He sought punitive or exemplary damages for wanton, willful, fraudulent and reckless acts. 

Year by year, Bayer and plaintiffs settled claims group by group. 

The Hamiltons didn’t settle their claim, and in 2015, they moved to set trial. 

Stephanie O’Connor of London’s firm wrote that Kaitlin entered Oklahoma State on an athletic scholarship, competing in track and field. 

After turning 21, and on Yaz for acne, Kaitlin suffered an embolism that traveled from her lower left leg to her lungs. 

“Treating physicians at the medical facility have identified Yaz as her only recognizable risk factor,” O’Connor wrote. 

She wrote that negotiations seemed to break down. 

Bayer counsel John Galvin, of Fox Galvin in St. Louis, opposed the motion and pleaded that any trial should take place in Oklahoma. 

Herndon denied the motion, and for two years the case sat idle. 

The parties filed a flurry of motions this April, including one from the Hamiltons seeking summary judgment on specific causation. 

Bayer counsel Terry Lueckenhoff, of Fox Galvin, answered that jurors could find malpractice on the part of health care providers. 

Mutual of Omaha counsel Edna Kersting of Chicago moved to intervene on Aug. 29, seeking reimbursement as insurer of Oklahoma State. 

London endorsed the intervention, writing that Mutual of Omaha agreed to dismiss an action in the Western District of Oklahoma. 

Bayer endorsed it, Herndon granted it, and Kersting filed for declaratory judgment that Mutual of Omaha was never obligated to cover the injury. 

She wrote that through Aug. 23, it paid $1,551,942.17 under a national policy for athletes and $75,013.91 under a group policy for Oklahoma. 

She wrote that an independent medical review, dated Aug. 10, determined that birth control pills caused the injury. 

The Hamiltons filed a counterclaim against Mutual of Omaha on Oct. 6, alleging bad faith, breach of contract, and breach of fair dealing. 

Mark Bialick of Oklahoma City wrote for them that the investigation and the decision “constituted conduct that was intentional, with malice and life threatening to humans.” 

Kersting moved to dismiss the counterclaim on Nov. 9, writing that Mutual of Omaha involved the court to determine coverage and continued paying benefits. 

Lueckenhoff moved to reopen discovery for Bayer on Nov. 17, writing that two newly discovered facts justified it. 

He wrote that Mutual of Omaha alleged that plaintiffs obtained benefits by claiming a sports injury. 

He wrote that plaintiffs conceded that doctors concluded that a sports injury was the direct cause of the injury. 

He wrote that discovery to date led Bayer away from these facts. 

On the same date, O’Connor moved for a protective order. 

“Bayer’s complete lack of diligence is the sole reason for the belated discovery they now seek,” she wrote.

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