Bellwether Trials Set in Mirena IUD Birth Control MDL

Selecting bellwether cases for trial is one of the most important strategic decisions a company will face in mass tort and multi-district litigation.  Currently, Bayer is defending approximately 123 lawsuits consolidated into an MDL in federal court in New York.  Some have made projections that the number of cases may grow into thousands – not an uncommon tactic in seeking to leverage larger settlement dollars. In addition to the MDL, there are approximately 200 cases consolidated in New Jersey state court.

Mirena is a small T-shaped IUD style birth control device that is inserted into a woman’s uterus and designed to prevent pregnancy for up to five years. AMA Top10 has included it in their top 10 methods of the best contraceptives. Since its introduction in 2000, there have been reports of uterine and other organ perforations alleged to be due to the IUD, resulting in abscesses and infections.  Moreover, there are claims that the spontaneous migration of the IUD may have left them unprotected against the possibility of pregnancy. One focus of these claims is that Bayer failed to provide adequate warnings in connection with these phenomena.

Earlier this year, an MDL was created in the Southern District of New York and initial scheduling orders have been made.  The structure of these initial orders, both in terms of discovery and in terms of the process for the selection of the initial cases for disposition, can be pivotal for how a particular litigation is ultimately resolved.  On August 18, federal court Judge Cathy Seibel issued a scheduling order that contemplates the Initial Disposition Pool of cases to be selected by the parties by April 4, 2014, which are projected to be started in late 2015.  Between now and April 2014, Bayer will have the opportunity to obtain some preliminary discovery information, including medical record gathering, which will be critical in assessing and selecting cases that should be included in the Initial Disposition Pool.

From a defense perspective, development through science counsel and appropriate experts of the medical issues surrounding to this spontaneous migration theory is imperative.  Additionally, whether this alleged migration would create a risk of unwanted pregnancy, either generally or in a specific case will have to be fully explored.   From a damages perspective, careful assessment and selection of the most commonly-reported injuries will help Bayer assess potential value of these claimed injuries should a jury make an award.  These are only some of the critical issues that Bayer will face in the coming months as it develops its litigation strategy for selecting the best bellwether cases for Daubert motions and for potential trial.

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