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In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation

United States District Court, S.D. Illinois

September 29, 2016

Bayer Corporation, et al. No. 3:09-cv-20079-DRH-PMF MDL No. 2100


          David R. Herndon, Judge.


         This matter is before the Court on the plaintiffs' motion to compel Bayer to produce witnesses for deposition and to respond to discovery (Doc. 24, Doc. 25). Specifically, plaintiffs seek to compel the depositions of Bayer's employees under Federal Rule of Civil Procedure 30(b)(6) regarding Bayer's communication with Mrs. Galinis' treating healthcare organization. Plaintiffs also seek to compel responses to their Requests for Admissions (Sets 1-3) and Special Interrogatory No. 5, or, in the alternative, to have the matters in the requests for admissions deemed admitted. If the requested discovery is found not to be case-specific and is therefore denied in accord with CMO 83, plaintiffs seek leave to conduct the discovery. Based on the record and on the limitations established under CMO 83, the Court ORDERS as follows:


         A. The Instant Action

         The plaintiff, Susan Galinis, was prescribed, dispensed and ingested Yasmin in April 2008 for the off-label treatment of her endometriosis. The prescribing physician was Mary Co-Asino M.D., a Kaiser Permanente Fremont doctor. Shortly thereafter, Mrs. Galinis suffered an acute stroke, requiring surgical intervention and removal of a portion of her skull to accommodate severe swelling. Mrs. Galinis was a patient of Kaiser Permanente, an integrated managed care consortium. Kaiser Permanente does not permit pharmaceutical companies to make direct contact with its physicians. Mrs. Galinis contends (1) Bayer strategically marketed Yasmin to Kaiser Permanente with intentions of reaching Kaiser physicians; (2) Bayer's marketing of Yasmin to Kaiser included several off-label uses; and (3) this Kaiser Permanente-specific marketing strategy goes directly to her claims pertaining to causation and the overpromotion of Yasmin for off-label use.

         B. Prior Discovery and CMO 83

         This multidistrict litigation was created in the fall of 2009. The litigation quickly ballooned to include thousands of cases. At its height, this multidistrict litigation included nearly 12, 000 files with multiple plaintiffs per file and was declared the largest multidistrict litigation in the nation. By February 2015, after more than five years of litigation, thousands of cases had been resolved, reducing the number of pending files from nearly 12, 000 to approximately 3, 400 (MDL 2100 Doc. 3634 p. 1).

         On February 13, 2015, the Court entered CMO 70 announcing the Court's plan for addressing the remaining unresolved cases (MDL 2100 Doc. 3634). CMO 70 provided that generic fact discovery would close in April 2015. Id. When generic fact discovery drew to a close in April 2015, Bayer had produced more than 120 million pages of documents and Bayer witnesses had sat for 170 days of deposition testimony. This exhaustive discovery included production of documents and witnesses addressing Bayer's preclinical, clinical, and post-marketing development programs for Yasmin and YAZ; regulatory matters related to Yasmin and YAZ; Bayer's sales and marketing of Yasmin and YAZ; and Bayer's drug safety programs and adverse event reporting related to Yasmin and YAZ.

         On August 3, 2015, the parties announced a settlement program for arterial thromboembolism (“ATE”) (MDL 2100 Doc. 3786). Plaintiffs who elected not to participate in or who were not eligible to participate in the ATE settlement program were subject to CMOs 78 or 79 and, eventually, non-participating plaintiffs with unresolved actions became subject to CMO 83. CMO 83 was entered with the purpose of establishing a schedule for the efficient progress of remaining cases that would be prepared for trial. CMO 83 allowed for certain case-specific fact discovery. However, in light of the extensive generic discovery that had already taken place, CMO 83 limited additional discovery efforts to the case-specific discovery identified in CMO 83, absent prior leave of court.


         A. Rule 30(b)(6) Deposition Notice

         Plaintiffs seek an order compelling deposition testimony from Bayer on ten topics related to its sales and marketing practice specific to Kaiser Permanente Fremont (Doc. 27-1). The Court finds that the subject Rule 30(b)(6) topics duplicate previous depositions. As outlined in Bayer's briefing, California plaintiffs' counsel previously deposed Kevin Kramer, the former Kaiser account director.[1] Mr. Kramer was deposed for two days in 2011 regarding the same topics that are the subject of the present Rule 30(b)(6) deposition notice. The minor issues raised by the plaintiffs regarding Mr. Kramer's deposition testimony do not warrant another deposition on the same topics. The plaintiffs' deposition topics were also covered during the 30(b)(6) deposition of Bayer employee Rusty Thomas for a full day in 2010 (in addition to three days of individual testimony). Finally, the plaintiffs recently served a subpoena on a former Bayer employee who worked on the Kaiser account (Doc. 27-7).

         Considering the prior testimony already available to the plaintiffs' and the upcoming deposition of the former Bayer employee who worked on the Kaiser account, the Court finds that ...

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