In an unusual move, the Judicial Panel on Multidistrict Litigation (JPMDL) reopened MDL 2434 for product liability claims against Bayer Healthcare Pharmaceuticals Inc. concerning its Mirena intrauterine device (IUD).
The MDL, In re Mirena IUD Products Liability Litigation, No. 13-MD-(CS), had been closed on Aug. 9 after US Judge Cathy Seibel of the Southern District of New York granted summary judgment on July 28 for defendant Bayer Healthcare Pharmaceuticals Inc. and dismissed all 1,377 cases for lack of causation expert testimony. The decision is on appeal to the Second US Circuit Court of Appeals.
The Nov. 3 decision to reopen the MDL came at the behest of Bayer and over the objections of the plaintiffs. Bayer requested the decision because it expected new cases to be filed against it.
It said that other MDLs have remained open while similar appeals are pending, such as the Incretin MDL in the Southern District of California, the Zoloft MDL in the Eastern District of Pennsylvania and the Fosamax MDL in the District of New Jersey.
Citing new evidence, the plaintiffs assert that Bayer appears to acknowledge in a patent application for another IUD, when explaining why it chose a different progestin, that levonorgestrel – the progestin used in Mirena – actually does affect uterine tissues.
“As this Court knows, this position is directly contrary to Bayer’s many assertions in this litigation that levonorgestrel does not affect the uterus. Plaintiffs with newly-filed cases are entitled to take discovery on this evidence and related issues, and to obtain additional expert testimony in support of their claims. This issue is already being briefed in New Jersey, and it would be appropriate here as well if the MDL were re-opened,” wrote plaintiff’s counsel Michael K. Johnson of Johnson Becker in St. Paul.
Mirena is a T-shaped plastic device coated with the hormone levonorgestrel. It is inserted into the uterus to provide birth control for up to five years. Plaintiffs charge that Mirena can migrate once inserted into the uterus, perforating the uterus or cervix upon insertion, and filed lawsuits alleging that Bayer failed to adequately warn doctors and women about the risk of uterine perforation.