Plaintiffs who have filed suit against Bayer over its Mirena hormone-coated birth control device have succeeded in having a second multidistrict litigation docket (MDL) focusing on injuries caused by increased intracranial pressure.
Judge Paul A. Engelmayer in the Southern District of New York will preside over 113 actions pending in 17 districts in MDL No. 2767, In Re: Mirena Ius Levonorgestrel-related Products Liability Litigation (No. II).
First answer is “no”
In July 2014, the Judicial Panel on Multidistrict Litigation (MDL) denied a motion for centralization filed by a different group of plaintiffs alleging that Mirena’s hormonal component causes or substantially contributes to the development of intracranial hypertension. See In re: Mirena Levonorgestrel-Related Prods. Liab. Litig., 38 F. Supp. 3d 1380 (J.P.M.L. 2014). The motion sought centralization of nine actions pending in six districts, all brought by the same counsel against a single defendant, BHCP. At that time, there were six potential tag-along actions.
In denying centralization, the JPMDL observed that the actions involved common factual issues, but determined that informal coordination was preferable to centralization in light of the limited number of actions, the few involved plaintiffs’ counsel, and defendant BHCP’s commitment to coordinating common discovery.
In November, the JPMDL reopened MDL 2434 in the Southern District of New York for product liability claims involving migration of the IUD in the uterus. It does not include any claims that the synthetic levonorgestrel hormone coating causes intracranial pressure or hypertension.
In the second motion for centralization, plaintiffs argue that the litigation has expanded dramatically over the past two years in terms of the number of actions, districts, and distinct plaintiffs’ firms independently litigating the actions, and informal coordination of discovery and pretrial motions has become impracticable. Bayer opposed centralization.
Second answer is “yes”
The JPMDL said, “First, the number of actions, districts, and counsel have grown substantially. The motion for centralization encompasses 113 pending actions in 17 districts, and there are at least 37 potential tagalong actions bringing the total number of involved districts to 20. The number of distinct plaintiffs’ counsel involved in this litigation also has expanded. There now are at least 12 unaffiliated plaintiffs’ firms in widely dispersed geographic locations. And although Bayer continues to have national coordinating counsel, at least 20 firms are litigating the underlying actions on the motion on its behalf. In our judgment, the number of actions, districts, and plaintiffs’ and defense counsel make effective coordination on an informal basis impracticable.”
“Second, the plaintiff-specific causation issues identified byBayer presently do not appear to be an obstacle to centralization, considering the development of the litigation over the past two years. While we previously expressed concern that individualized causation issues might predominate in this litigation, the records in the manyactions filed since then demonstrate that discoveryand pretrial motions concerning the issue of general causation have been, or will be, at the center of all actions – that is, whetherthe hormonal component in Mirena is capable of causing intracranial hypertension.”
“Third, the record demonstrates that centralization is necessary to facilitate the efficient conduct of common discovery. Although fact and expert discovery has closed in the ten longest pending actions, discovery remains open in nearly all other actions, with most actions at a relatively early stage of discovery or still at the pleading stage. While Bayer asserts that the longer pending 4 proceedings have resulted in the completion of all common discovery, plaintiffs vigorously disagree.”
“Fourth, although a handful of actions are in an advanced procedural posture, the transferee judge possesses broad discretion to formulate a pretrial program that accounts for any significant differences among the actions and ensures that duplicative activity is minimized or eliminated.”
The lawsuits share factual questions arising out of allegations that the synthetic hormone released by Mirena causes abnormal elevation of cerebrospinal fluid in the skull, resulting in a neurological condition referred to as intracranial hypertension or pseudotumor cerebri, and that defendants did not adequately warn prescribing physicians or consumers of the alleged risk. Issues concerning general causation, the background science, and Mirena’s labeling and regulatory history with respect to the alleged injury will be common to all actions.