United States District Court, S.D. Illinois
IN RE YASMIN AND YAZ (DROSPIRENONE) MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION Susan Galinis, et al.
Bayer Corporation, et al. No. 3:09-cv-20079-DRH-PMF MDL No. 2100
R. Herndon, Judge.
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:
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.
Prior Discovery and CMO 83
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).
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
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.
30(b)(6) Deposition Notice
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. 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).
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 ...