By Max Mitchell, From The Legal Intelligencer

The makers of Yaz, Yasmin and Ocella have agreed to provide nearly $56.9 million to establish a settlement program for plaintiffs claiming they suffered arterial blood clots as a result of taking the birth-control drugs.

Bayer, which makes Yaz and Yasmin, and Barr Laboratories and Teva Pharmaceuticals, the makers of the generic drug Ocella, have agreed to provide $56.9 million to settle claims that the drospirenone-containing birth control drugs led to stroke and heart attacks. The agreement covers cases pending in Pennsylvania, California and New Jersey.

As of April, 360 cases were pending in the Philadelphia Complex Litigation Center, according to recent statistics. The first arterial blood clot-related case had been set to begin trial in late July.

The settlement program is expected to resolve the vast majority of the claims against Bayer. However, the company can withdraw from the program if fewer than 97.5 percent of those who are eligible participate.

Philadelphia Court of Common Pleas Judge Arnold New entered implementing orders regarding the settlement program Monday. U.S. District Judge David R. Herndon of the Southern District of Illinois was the MDL judge in the case.

“Special master Randi Ellis and Judge New as well as the MDL judge here were instrumental in assisting the parties to agree to this deal,” said Michael Weinkowitz of Levin, Fishbein, Sedran & Berman. Weinkowitz represented some of the plaintiffs, and was a member of the committee negotiating the settlement.

Bayer spokesman Steven Immergut said the company believes the contraceptives do not carry an increased risk of arterial blood clots, and the labeling adequately disclosed the risks.

“Bayer agreed to this settlement, without admission of wrongdoing or liability, in order to avoid the cost and distraction of litigation and to put the focus back on what matters most—the needs of patients,” Immergut said in a statement. “This settlement is an important step in bringing to a close longstanding litigation involving Bayer’s drospirenone-containing combination oral contraceptives that has lasted for more than six years.”

Albert G. Bixler of Eckert Seamans Cherin & Mellott represented Bayer.

Alice S. Johnston of Schnader Harrison Segal & Lewis, who represented Barr and Teva, did not immediately return a call for comment Tuesday morning. It was not clear exactly how much Barr and Teva may contribute to the settlement program.

Lawsuits against Bayer claiming injuries related to venous blood clots, deep vein thrombosis, gallbladder injury and arterial clots were consolidated into an MDL in 2009.

According to a statement from Levin Fishbein, Bayer previously agreed to pay $2 billion to resolve the venous clot-related claims, and has also settled claims related to alleged gallbladder injuries.

Court documents from the MDL said that, at its height, the litigation involved nearly 12,000 files with multiple plaintiffs per file, and had been declared the largest multidistrict litigation in the nation. By February, the MDL had boiled down to about 3,400 claims, according to court documents.

The defendants, court papers said, had argued some plaintiffs never took birth-control pills containing drospirenone, and that many plaintiffs had duplicate cases pending. However, in February, Herndon issued an opinion criticizing the defendants’ litigation tactics.

“Given 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 marketplace analysis in the [venous thrombosis event] cases and virtually not negotiating the [arterial thrombosis event] cases,” Herndon said.

As part of that ruling, the judge petitioned the U.S. Judicial Panel on Multidistrict Litigation to remand some of the cases to their home districts to be dismissed, settled or tried. The judge also told the parties to take “whatever depositions are needed for purposes of discovery and trial so that as many of the cases as possible are ready or nearly ready for trial when remanded.”

Attorneys from New York City, Denver and Newport Beach, California, took part in the settlement talks. According to Weinkowitz, after months of negotiations and one final all-night session, the negotiating teams reached an agreement in Philadelphia on the morning that the first case involving arterial blood clot claims was set to begin jury selection.

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