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C:\My Documents\MDL2603.V1.Wpd 1 1 09:34:35 2 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA 3 4 ----------------------------------------------------------- ) 5 In Re: Baycol Product Litigation ) MDL No. 1431 MJD ) 6 ) 9:30 a.m. o'clock ) February 6, 2003 7 ) Minneapolis, MN ) 8 ) VOLUME I ) 9 ----------------------------------------------------------- 10 BEFORE THE HONORABLE MICHAEL J. DAVIS UNITED STATES DISTRICT COURT JUDGE 11 (CLASS CERTIFICATION HEARING) 12 APPEARANCES: 13 ON BEHALF OF THE PLAINTIFF: CHARLES ZIMMERMAN, ESQ. ARTHUR MILLER, ESQ. 14 ELIZABETH CABRASER, ESQ. STANLEY CHESLEY, ESQ. 15 RICHARD ARSENAULT, ESQ. RICHARD LOCKRIDGE, ESQ. 16 JOHN CLIMACO, ESQ. DIANNE NAST, ESQ. 17 ON BEHALF OF THE DEFENDANT: PHILIP BECK, ESQ. PETER SIPKINS, ESQ. SUSAN WEBER, ESQ. 19 FRED MAGAZINER, ESQ. ADAM HOEFLICH, ESQ. 20 REBECCA BACON, ESQ. 21 COURT REPORTER: 22 BRENDA E. ANDERSON, RPR 300 South 4th Street 23 Suite 1005 Minneapolis, MN 55415 24 (612) 664-5104 E-mail - [email protected] 25 2 1 THE CLERK: Multi-District Litigation No. 1431, 09:34:37 2 In re: Baycol Products. Please state your appearances for 09:34:41 3 the record. 09:34:44 4 MR. ZIMMERMAN: Good morning, Your Honor, Charles 09:34:45 5 Zimmerman for the Plaintiffs Steering Committee. 09:34:46 6 THE COURT: Good morning. 09:34:50 7 MR. CHESLEY: Good morning, Stanley Chesley for 09:34:53 8 the Plaintiffs Steering Committee. 09:34:55 9 THE COURT: Good morning. 09:34:57 10 MS. CABRASER: Good morning, Elizabeth Cabraser 09:34:58 11 for the Plaintiffs. 09:35:01 12 THE COURT: Good morning. 09:35:02 13 PROFESSOR MILLER: Good morning, Arthur Miller 09:35:04 14 for the Plaintiffs. 09:35:06 15 THE COURT: Good morning, Professor. 09:35:08 16 MS. NAST: Dianne Nast for the Plaintiffs. 09:35:12 17 MR. CLIMACO: John Climaco, Plaintiffs Steering 09:35:15 18 Committee. 09:35:20 19 MR. ARSENAULT: Richards Arsenault for the 09:35:20 20 Plaintiffs Steering Committee. 09:35:23 21 THE COURT: Good morning. Mr. Beck. 09:35:25 22 MR. BECK: Philip Beck for the Defendants, and I 09:35:27 23 want to introduce, also, if I may, Dr. Roland Hartwig who 09:35:30 24 is the General Counsel from Bayer AG who is here this 09:35:37 25 morning. 09:35:42 3 1 THE COURT: Good morning. 09:35:43 2 MR. BECK: Also Gary McConnell, Senior Counsel 09:35:46 3 for the Bayer United States, and with me are my colleagues 09:35:51 4 from my firm Rebecca Weinstein Baker and Allison Freedman. 09:35:53 5 THE COURT: Good morning. 09:36:01 6 MS. WEBER: Good morning, Susan Weber for Bayer, 09:36:02 7 and I have a couple of my colleagues, James Mizgala and 09:36:05 8 Sherry Knutson. 9 THE COURT: Good morning. 09:36:13 10 MR. BECK: I'm sorry, one of my late arriving 09:36:15 11 colleagues who hasn't worked very hard on this matter is 09:36:19 12 Adam Hoeflich. 09:36:24 13 THE COURT: You got him on the hard bench back 09:36:26 14 there. What did you do to deserve that, Adam? 09:36:28 15 MR. HOEFLICH: I lost a motion the last time, 09:36:34 16 Judge. 09:36:37 17 MR. MAGAZINER: Fred Magaziner for 09:36:38 18 GlaxoSmithKline. 09:36:43 19 MR. SIPKINS: Peter Sipkins. 09:36:48 20 MR. SCHAERR: Gene Schaerr for Bayer. 09:36:51 21 THE COURT: Good morning. Mr. Zimmerman. 09:36:52 22 MR. ZIMMERMAN: May it please the Court, Counsel, 09:37:16 23 about a year ago, Your Honor, I made a pledge to this Court 09:37:26 24 and the PSC made a pledge, and that was to do justice. The 09:37:29 25 Plaintiffs and Defendants in April in New Orleans made a 09:37:37 4 1 pledge to the courts around the country and lawyers around 09:37:43 2 the country to do justice. A pledge of fair, equal and 09:37:46 3 inexpensive justice. 09:37:54 4 Today in this courtroom we seek fair, fast, equal 09:37:57 5 and inexpensive justice. What is justice? What is fair? 09:38:03 6 Fast, inexpensive justice. According to the Supreme Court, 09:38:09 7 it's the touchstone of federal procedure. It is stated as 09:38:13 8 the purpose of the federal rules in Rule 1 to be 09:38:19 9 administered to secure just, speedy and inexpensive 09:38:24 10 determinations of every action. 09:38:28 11 The concept of justice, however, is not a static 09:38:32 12 one. In 1969, Justice Thurgood Marshall at the Tenth 09:38:37 13 Annual James Madison series said justice must be revised to 09:38:47 14 suit the times. 09:38:52 15 Today, Your Honor, we are at a crossroads. 09:38:54 16 Decisions we make today will be affecting everyone in this 09:38:58 17 country with the Baycol case. Everyone looking to this MDL 09:39:01 18 for help in this litigation, everyone looking to this MDL 09:39:10 19 for management and resolution of the issues that will 09:39:15 20 advance their claim. And, really, everyone who looks to 09:39:17 21 the federal courts for answers to complex legal problems. 09:39:25 22 This MDL, the Baycol litigation, involves one 09:39:28 23 product, Baycol, one manufacturer, Bayer, who in a period 09:39:32 24 of less than 42 months injured thousands and thousands of 09:39:39 25 people with one signature disease. 09:39:44 5 1 The question really is how are we going to fairly 09:39:48 2 and promptly compensate the victims who truly deserve 09:39:54 3 compensation and fairly treat people who deserve medical 09:40:04 4 monitoring. How are we going to fairly administer justice, 09:40:07 5 give equal justice to all? To make our system work to 09:40:11 6 those with legitimate claims, and I mean legitimate claims, 09:40:15 7 and do so again without unreasonable delay, without 09:40:18 8 unneeded expense, and without unneeded repetition of the 09:40:23 9 litigation. 09:40:26 10 How are we going to resolve common issues and 09:40:29 11 prevent endless relitigation of the same issues for far as 09:40:34 12 the eye can see. And, Your Honor, we have choices -- 09:40:39 13 choices that will be guided by experience and the law. 09:40:43 14 Experience, Your Honor, we are fortunate, we are very 09:40:50 15 fortunate. Almost every major mass tort decision after 09:40:53 16 every major mass tort case in this country over the last 15 09:40:57 17 years have been litigated by lawyers in this courtroom 09:41:02 18 today -- breast implants, tobacco, diet drugs, Albuterol, 09:41:06 19 Telectronics, asbestos, Ford, Firestone, Propulcid, 09:41:13 20 Rezulin, Sulzer. All of the lawyers that were the 09:41:19 21 architects and Steering Committee of those cases are here 09:41:24 22 today. And all cases cited, or almost all cases cited by 09:41:27 23 both parties in the brief that involve these issues, we 09:41:31 24 have the people here who can compare and contrast and 09:41:36 25 discuss in a learned way with this Court those decisions. 09:41:41 6 1 Those facts must be well understood and the law must be 09:41:45 2 well understood. 09:41:49 3 We have Professor Arthur Miller. He brings to us 09:41:50 4 an extreme range of understanding and experience. I 09:41:56 5 believe he will demonstrate to this court how and why a 09:42:00 6 class action is superior, how and why a class action can 09:42:04 7 work and be managed and show how and why a well-managed 09:42:08 8 class action is not only possible but practical, and will 09:42:15 9 serve the interest of effective management of this MDL. 09:42:22 10 And we will show how and why a well-managed class 09:42:27 11 action can resolve issues common to all Baycol litigants, 09:42:33 12 plaintiff and defendant. And then we will hear from 09:42:37 13 Elizabeth Cabraser as well who will demonstrate to us why a 09:42:41 14 refund class to be certified before this court is the right 09:42:46 15 thing to do. 09:42:51 16 Your Honor, you will hear sharp contrast. 09:42:53 17 Plaintiffs will show the possibilities. Defendants will 09:42:58 18 attempt to show the reasons why not. We call it the parade 09:43:02 19 of horrors. Defendants will try and show why thousands and 09:43:05 20 thousands of cases and thousands of trials in ever federal 09:43:10 21 district in this country is best when again we have one 09:43:16 22 drug, one manufacturer, one set of liability facts in a 09:43:19 23 period of 42 months who were given to a universe of people 09:43:24 24 with the same problem, high cholesterol, and produced the 09:43:33 25 same signature disease.
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