Bayer Opposes the Formation of a Mirena MDL

In August 2012, Bayer Healthcare Pharmaceuticals petitioned the New Jersey Courts to centralize all Mirena IUD lawsuits filed in the state into one location. On January 8, 2013, the New Jersey Supreme Court denied the request for unknown reasons.

Soon after, on January 16, 2013, Mirena lawyers representing plaintiffs with claims against Bayer filed a motion with the U.S. Judicial Panel on Multidistrict Litigation (JPML) to consolidate all federal cases into one court. Bayer, however, has this time filed a response opposing federal centralization, arguing that it is not appropriate.

Bayer Seeks Consolidation at State Level

Bayer wanted to consolidate New Jersey Mirena lawsuits in Middlesex County Superior Court, arguing that consolidation would be more efficient. In their petition, they wrote, “Centralized Management in a Mass Tort venue, with an experienced Judge, will help ensure fairness to the parties, provide a streamlined approach to case management and avoid the possibility of duplicative motion practice and inconsistent discovery rulings between multiple Judges in Morris County.”

The company expected additional Mirena lawsuits to be filed in the future, and argued that centralization would conserve judicial resources and reduce the risk of inconsistent rulings. The arguments proved moot when the New Jersey Supreme Court denied the consolidation request.

Bayer Argues Against Federal Consolidation

Now that Mirena IUD plaintiffs have filed a petition to have federal lawsuits consolidated in the Northern District of Ohio, Bayer seems to have changed its tune. In a response to the petition, the company stated, “An MDL is not necessary here and will only prejudice Bayer.”

The company goes on to explain that it has already prepared to try one Mirena lawsuit that has been on file for two years. The case was scheduled to be tried May 2013, but because of the MDL petition, has now been stayed pending the JPML’s decision. Bayer has “spent significant time and money to defend the case,” producing over 1.7 million pages of documents and presenting numerous company witnesses for deposition.

If the JPML orders all federal Mirena lawsuits consolidated, Bayer states that it will face “the possibility of starting over with an MDL that would largely duplicate the time-consuming discovery process” that the company has already completed.

Bayer Says MDL Will Encourage “Marginal” Mirena Claims

Bayer also argues that establishing a Mirena MDL will encourage plaintiffs to file “marginal” Mirena claims that “do not plead even the most basic facts,” again to Bayer’s prejudice. The current cases “do not even meet the basic requirements to justify an MDL,” the company states, since the most commonly alleged injury —uterine perforation—is not “common,” but so far is claimed in only six of the eight federal cases already pending. Bayer adds that they have warned about the risk of perforation since 2001, so there is no need for extensive discovery about their knowledge of such a risk.

Finally, the company argues that consolidation will not make discovery any more convenient or efficient, since “discovery regarding the plaintiff-specific individual issues in a perforation case will likely overwhelm any alleged common issues.”

What About New Jersey?

In defending its supposed flip-flopping on the issue of consolidation, Bayer states that New Jersey was unique, in that the cases there were all “at the early stage of litigation with no dispositive motions pending and no trial settings.” The cases were also all pending in one county, but county courts are not equipped to handle mass tort litigation.

“That is a dramatic contrast to this situation,” Bayer wrote, “where every federal court with one or a few Mirena cases pending before it is fully capable of handling those cases.”

Plaintiffs See It Differently

Plaintiffs argue that though the Mirena label does warn about uterine perforation, it does so in a way that leads consumers to assume the problems occur only during the insertion process. Yet women have reported experiencing this complication long after the Mirena was inserted. In addition, plaintiffs state that Bayer failed to warn about spontaneous migration, where the Mirena can move to other parts of the body after insertion.

The plaintiffs further argue that because of these and other issues with the Mirena, “It is expected that once the due diligence vetting and gathering of medical evidence is completed, there will be hundreds of lawsuits filed throughout the country.”

The JPML is expected to hear arguments on the establishment of a Mirena IUD on March 21, 2013.