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

United States District Court, S.D. Illinois

September 13, 2017

Bayer HealthCare Pharmaceuticals Inc., et al., No. 3:11-cv- 13465-DRH-PMF This Document Relates to: Walter Hamilton, et al., No. 3:09-md-02100-DRH-PMF


          HERNDON JUDGE.

         After reviewing the parties' arguments for and against striking the supplemental report of defendant Bayer's expert, Dr. Henry Rinder [Doc. 36], the Court hereby DENIES the motion. However, the Court GRANTS Bayer's Motion to Compel the Additional Depositions of Dr. Rinder and Dr. Mitchell Botney [Doc. 50], in a limited capacity. Each deposition may take no longer than thirty minutes per side and they shall be limited to scope of the documents in dispute.

         I. BACKGROUND

         Defendant Bayer argues that three untimely reports have been served by plaintiffs' experts, Dr. Henry Rinder and Dr. Mitchell Botney. Specifically, Bayer objects to: Dr. Rinder's supplemental report served on April 13, 2017; Dr. Rinder's affidavit that accompanied plaintiffs' opposition to Bayer's Daubert motion [Doc. 46]; and Dr. Botney's declaration that also supported plaintiffs' opposition [Doc. 47]. In addition to its claims of untimeliness, Bayer opposes the above reports due to the defense's inability to question the experts' allegedly new opinions that noregestimate pills should be treated the same as levonorgestrel pills. The comparison, Bayer argues, is important to question the experts on as it bears issue to whether a safer birth control pill was available at the time Ms. Kaitlin Hamilton suffered her injuries.

         Specifically, Bayer challenges the classification of norgestimate as a second generation drug, as opposed to a third generation drug. By classifying norgestimate pills as second generation, Bayer argues that the studies comparing the use of Yasmin birth control to the undebated second generation drug, levonorgestrel, are then relevant to this case and the underlying issue of whether Yaz carries a higher venous thromboembolosim (“VTE”) risk than second generation drugs. Defendants argue they require a chance to question Drs. Rinder and Botney about these allegedly new opinions pursuant to Federal Rules of Civil Procedure 30(a)(2)(ii) and 26(b)(1) and (2).

         Bayer has also moved to strike Dr. Rinder's April 13th supplemental report for his classification of norgestimate as a second generation pill. [Doc. 36]. Bayer supports this motion by pointing to instances where plaintiffs' own experts have contradicted Dr. Rinder's supplemental report and called norgestimate a third generation pill, e.g. in Dr. John Maggio's 2011 expert report, and Bayer argues that nothing has changed in the science for Dr. Rinder to now opine that norgestimate be classified a second generation drug.

         Plaintiffs respond that their experts' opinions regarding the classification of norgestimate as a second generation pill are not new opinions - that Dr. Rinder has testified to the same at his February 13, 2017 deposition and that Dr. Botney's declaration just clarified his previous statements regarding second generation drugs. Thus, there is no need to take additional depositions as there are no new opinions to question. Plus, plaintiffs maintain that these norgestimate opinions are not even at odds with other plaintiff experts as Bayer suggested. Rather, plaintiffs' experts have always claimed that norgestimate can be classified as either a second OR third generation drug; that there is a legitimate split in the scientific community as to where norgestimate falls. Plaintiffs state that regardless of whether both classifications are proper, due to its similarities with levonorgestrel, norgestimate can properly be considered second generation, and thus, studies looking at levonorgestrel are useful to this case.

         Finally, plaintiffs additionally oppose Bayer's motion to strike Dr. Rinder's April 2017 report as, according to plaintiffs, the remainder of Dr. Rinder's three-page supplemental report not discussing the classification of norgestimate, contains opinions in direct rebuttal to statements made at Bayer's expert, Dr. Gladys Tse's, deposition taken on March 7, 2017. According to plaintiffs, Dr. Tse made statements not before made in her expert report and therefore, Dr. Rinder had a duty under FRCP 26(e) to supplement his report.

         II. ANALYSIS

         a. Dr. Rinder's Supplemental Expert Report served on April 13, 2017 is Proper and Timely

         Under Federal Rule of Civil Procedure 26(e)(1) and (2), a party has a duty to supplement his or her responses when it is learned that the response is now incomplete, and an expert witness has a duty to supplement both information contained in his or her report and/or given during a deposition. The Court is persuaded by plaintiffs' arguments that Dr. Rinder's three page supplemental report is proper and timely because it addresses the opinion of defense expert Dr. Tse, that Yaz and Yasmin should not be grouped together regarding VTE risk. Dr. Tse based her opinion to distinguish the two medications due to Yaz having a lower estrogen dose than Yasmin and also a different dosing schedule.[1] This opinion and distinction however, was not disclosed in Dr. Tse's expert report -rather she testified to it during her March 2017 deposition. Thus, Dr. Rinder's supplemental report ensures plaintiffs have a complete response to Dr. Tse's beliefs about the VTE risks of Yaz and Yasmin.

         In requesting the Court strike Dr. Rinder's supplemental report, Bayer focuses solely on, wrongly, only one part of the three page report - the classification of norgestimate as a second generation pill. That alone is not enough reason to strike the report. Additionally, and as explained further below, the Court is granting Bayer the opportunity to take a second deposition of Dr. Rinder and will be able to further flesh out his opinions regarding norgestimate. Therefore, Bayer's arguments to strike based on Dr. Rinder's classification of norgestimate, are moot. Accordingly, Bayer's Motion to Strike the Untimely Supplemental Report of Dr. Henry Rinder is DENIED.

         b. An Additional Deposition for Each Dr. Rinder and Dr. Botney is Granted.

         Given the argument that Dr. Rinder and Dr. Botney have offered new opinions on whether a safer birth control alternative was available to Ms. Hamilton had she not been prescribed Yaz, and the Court's allowing of Dr. Rinder's supplemental ...

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