Hamilton et al v. Bayer Healthcare Pharmaceuticals, Inc. et al

Filing 56

ORDER DENYING 36 MOTION to Strike the Untimely Supplemental Report of Dr. Henry Rinder filed by Bayer Pharma AG, Bayer Healthcare Pharmaceuticals, Inc., and GRANTING 50 MOTION to Compel the Additional Depositions of Plaintffs' ; Experts Dr. Henry Rinder and Dr. Mitchell Botney filed by Bayer Pharma AG, Bayer Healthcare Pharmaceuticals, Inc. Each deposition shall last no longer than twenty minutes per side and shall be limited to the scope of the supplemental reports. Signed by Judge David R. Herndon on 9/13/2017. (ceh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS

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IN RE YASMIN AND YAZ
(DROSPIRENONE) MARKETING, SALES
PRACTICES AND PRODUCTS LIABILITY
LITIGATION

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3:09-md-02100-DRH-PMF

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MDL No. 2100

---------------------------------------------------------------This Document Relates to:

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Judge David R. Herndon

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Walter Hamilton, et al., v. Bayer HealthCare
Pharmaceuticals Inc., et al., No. 3:11-cv13465-DRH-PMF

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ORDER DENYING MOTION TO STRIKE SUPPLEMENTAL REPORT OF DR.
HENRY RINDER AND GRANTING MOTION TO COMPEL ADDITIONAL
DEPOSITIONS OF DRS. RINDER AND MITCHELL BOTNEY
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.
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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
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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 threepage 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.
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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,
1

The Court is aware that plaintiffs make an argument in their opposition to foreclose Bayer from
arguing that VTE risk of Yaz is different than that of Yasmin. [Doc. 37 at p. 13]. The Court
declines to take up that argument at this time.

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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 report, the Court hereby GRANTS Bayer’s Motion to
Compel. [Doc. 50].
In Dr. Rinder’s original expert report, he offered the opinion that Kaitlin
Hamilton’s use of Yaz birth control caused her VTE, and had she taken a second
generation birth control pill, she more than likely would not have suffered a VTE.
Rinder Report, p. 10.

On the same page, Dr. Rinder stated an example of a

second generation drug as levonorgestrel.

Then, during his deposition on

February 13, 2017, Dr. Rinder repeated his example of levonorgestrel as a second
generation drug. Rinder Depo. 2/13/17, 145:22-146:11. Similarly, Dr. Botney
opined in his original expert report that birth control pills containing
drospirenone (like Yaz) create a “2-fold or higher risk of VTE over that of
Levonorgestrel [pills], sometimes referred to as ‘second generation[.]’” Botney
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Report, p. 3. Both experts used studies comparing Yasmin to levonorgestrel to
support the conclusion that second generation drugs offered less risk of VTE.
Plaintiffs argue that in their supplemental reports, Drs. Rinder and Botney
are simply clarifying their thoughts on what a second generation drug is, and that
just because they both used levonorgestrel as an example of such drug, that does
not mean that it is the only second generation classification out there. Plaintiffs
further claim that it is each drugs’ VTE risk that is important, not the semantics
of second and third generation labels, therefore whether or not norgestimate was
specifically used as an example of a “second generation” drug by their experts is
not the relevant consideration.
Although plaintiffs make a solid argument that Bayer has already had an
opportunity to question Drs. Rinder and Botney at their depositions to seek
clarification of their opinions concerning what drugs may be considered secondgeneration, the Court believes that the experts was not abundantly clear in their
classification of norgestimate until their supplemental reports, including the
affidavit and declaration, were made. Because of this, Bayer shall be permitted to
take an additional deposition of both Dr. Rinder and Dr. Botney pursuant to
FRCP 30(a)(2). Importantly however, each deposition may not exceed more than
twenty minutes per side, and for the case of Dr. Rinder, shall be limited in scope
to the information contained in his April 2017 supplemental report and affidavit
at Doc. 46, and for the case of Dr. Botney, shall be limited in scope to the
information contained in his declaration at Doc. 47.
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III.

CONCLUSION
For the reasoning stated above, the Court DENIES Bayer’s Motion to Strike

the Untimely Supplemental Report of Dr. Henry Rinder and GRANTS Bayer’s
Motion to Compel the Additional Depositions of Plaintiffs’ Causation Experts Dr.
Henry Rinder and Dr. Mitchell Botney, pending the limiting considerations
already stated.

IT IS SO ORDERED.

Judge Herndon
2017.09.13
06:00:20 -05'00'
United States District Judge

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