United States District Court, S.D. Illinois
IN RE YASMIN AND YAZ DROSPIRENONE MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION
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
ORDER DENYING MOTION TO STRIKE SUPPLEMENTAL REPORT OF
DR. HENRY RINDER AND GRANTING MOTION TO COMPEL ADDITIONAL
DEPOSITIONS OF DRS. RINDER AND MITCHELL BOTNEY
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.
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
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).
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.
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.
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.
Dr. Rinder's Supplemental Expert Report served on April
13, 2017 is Proper and Timely
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. 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.
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.
An Additional Deposition for Each Dr. Rinder and Dr. Botney
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