NuvaRing Lawyers Propose Selection Process for Early Trials in MDL

Product liability lawyers involved in the federal NuvaRing litigation have submitted a joint proposal for the selection of bellwether trials in the multidistrict litigation (MDL), which will be used to help the parties gauge the relative strengths and weaknesses of their cases and possibly facilitate a NuvaRing settlement agreement in lawsuits filed by women who have suffered a blood clot or other injury from side effects of the birth control ring.

In advance of a status conference scheduled for today in the U.S. District Court for the Eastern District of Missouri before Rodney Sippel, NuvaRing lawyers representing plaintiffs as well as the makers of the birth control ring, submitted a joint proposal regarding the selection process for a pool of cases that will be prepared for the first trials.

NuvaRing is a form of birth control that releases a combination of etonogestrel and ethinyl estradiol through a ring that is inserted into the vagina once a month.

All NuvaRing lawsuits filed in federal district courts throughout the United States have been consolidated before Judge Sippel for pretrial proceedings as part of an MDL, or multidistrict litigation. The complaints all involve similar allegations that women suffered blood clots as a result of NuvaRing side effects, leading to injuries like a stroke, heart attack, pulmonary embolism, deep vein thrombosis (DVT) or sudden death. The claims argue that the drug makers failed to adequately research the birth control ring or warn about the potential increased risk of these serious problems.

According to a prior case management order, 25 NuvaRing cases were selected for the initial bellwether pool, with all fact discovery to be completed by June 24, 2011. The parties have presented a joint proposal for the procedure to narrow the pool of bellwether cases that will be prepared further for an early trial.

The bellwether process is common in complex litigation involving a number of claims that raise similar allegations. By selecting a small group of cases for an early trial, the parties are able to get an idea how a jury is likely to respond to evidence and testimony that may be similar to what would be presented in other cases. The outcome of these trials often shapes the litigation and may ultimately lead to an agreement to settle NuvaRing birth control lawsuits by the drug maker.

Among the cases originally selected by each side last year for the bellwether pool, both sides identified one common case on each of their lists, which they have agreed will be selected for one of the first NuvaRing trials.

To reduce the number of cases that must go through expert discovery, the parties have proposed that each side select seven cases from the remaining 24 NuvaRing lawsuits to constitute the preliminary trial pool. The plaintiffs and defendants will then each simultaneously strike three cases from the preliminary trial pool, and the remaining nine cases will constitute the final trial pool. Expert discovery would then be limited to the nine cases in the final trial pool, which will occur over the next year.

The parties have proposed that the court schedule a status conference in March 2012 to establish trial dates and a method for selecting three trials from the nine cases in the final trial pool. The parties have agreed that the case they both originally selected for the bellwether process will be one of the first three trials.

As of the end of 2010, more than 730 people had filed a NuvaRing lawsuit and the number of cases is expected to increase over the next year, as NuvaRing lawyers continue to review new cases for women who have experienced problems. The vast majority of the pending NuvaRing cases filed throughout the country are included in the MDL, but additional lawsuits are pending in New Jersey state court and other state courts throughout the United States.