Frustrated with the slow pace of settlements for remaining Yaz lawsuits and Yasmin lawsuits, the federal judge presiding over the litigation indicates that groups of cases will be remanded back to U.S. District Courts throughout the country for individual trials later this year.
Since 2009, all product liability lawsuits filed throughout the federal court system involving injuries allegedly caused by side effects of Yaz, Yasmin or other related birth control pills have been centralized before U.S. District Judge David R. Herndon, as part of a Multidistrict Litigation (MDL) in the Southern District of Illinois.
At one time, there were more than 12,000 complaints related to the birth control pills pending before Judge Herndon. However, Bayer has reached Yasmin and Yaz settlements to resolve thousands of cases involving venous thrombotic event injuries (“VTE” cases), such as a deep vein thrombosis or pulmonary embolism, as well as claims involving gallbladder problems.
Despite the settlements, more than 3,400 cases remain in the MDL, according to a recent Court documents. Most of the remaining cases involving arterial thrombotic events (“ATE” cases) or patent foramen ovale injuries (“PFO” cases), which Bayer has resisted settling.
In a case management order (PDF) issued on February 13, Judge Herndon expressed frustration at the apparent lack of good faith negotiations by Bayer, which has left thousands of women without a resolution of their claim.
“[G]iven the history of this litigation, the undersigned judge has become convinced that the strategy going forward, on the part of the defendants, is one of attrition not market place analysis in the VTE cases and virtually not negotiating ATE cases,” wrote Judge Herndon. “Therefore, even though an MDL judge certainly can and should be helpful to the litigation, part and parcel to the pretrial discovery by facilitating settlement, but when that settlement posture must come from wearing everyone down over time or expecting an entire group of catastrophically injured women, for the most part, to simply drop their claims, the MDL judge is not properly exercising his duties by simply standing by or dragging the pretrial proceedings out.”
Last year, Judge Herndon identified a group of 33 Yaz and Yasmin lawsuits involving ATE and PFO injuries that are being prepared for early trial dates.
In the order issued last week, Judge Herndon pointed out that Bayer has refused to waive venue requirements in those cases, which would have allowed the Court to establish a “bellwether” process for selecting a series of trials in the MDL to help gauge how juries may respond to certain evidence and testimony that may be repeated throughout the litigation. Therefore, only cases which could have been filed in the Southern District of Illinois without the MDL proceedings can be scheduled for trial before Judge Herndon.
A complaint (PDF) filed by Pamela Schuchert, who is a resident of Chester, Illinois, has been set for trial to begin before Judge Herndon on June 15, 2015. Schuchert’s claim involves an ATE injury, alleging that she suffered a stroke from side effects of Yaz birth control. Judge Herndon indicates that the case will be restricted to ten trial days, and that it is not to be seen as a “bellwether” trial or “show trial”, but rather as the simple scheduling of trial in a case that has not settled and is ready to go before a jury for resolution.
Following the conclusion of the case, the parties have been ordered to submit a memorandum by June 30, regarding instructions that can be provided to U.S. District Judges throughout the country about what has been accomplished in the MDL with regard to generic pretrial discovery and rulings in the remaining cases.
On July 1, or soon thereafter, Judge Herndon indicates that he will begin petitioning the U.S. Judicial Panel on Multidistrict Litigation (JPML) to remand groups of cases back to the U.S. District Courts where they would have originally been filed.