Bayer Seeking Dismissal of Mirena Lawsuit Due to Statute of Limitations

As the number of Mirena IUD lawsuits filed by women throughout the country continues to mount, Bayer has filed a motion dismiss at least one case, arguing that the complaint was not filed within the applicable statute of limitations based on the date she first discovered the birth control implant migrated out of position.

There are currently about 1,200 product liability lawsuits filed against Bayer by women who allege they suffered severe and debilitating Mirena IUD complications, where the small, T-shaped device perforated their uterus and migrated to other areas of the body.

On April 9, Bayer filed a motion to dismiss (PDF) a federal lawsuit filed by Amanda Truitt, who is one of dozens of women who filed their lawsuit several years after experiencing the injury, claiming that they were unaware that their problems were caused by design defects with the Mirena IUD that allegedly made it prone to spontaneously migrate.

In the federal court system, the Mirena litigation has been consolidated for pretrial proceedings before U.S. District Judge Cathy Seibel in the Southern District of New York. About 500 of the cases currently pending throughout the country are centralized before Judge Seibel as part of an MDL, or multidistrict litigation.

In January, Bayer indicated that roughly 20% of all claims pending in the Mirena MDL at that time may have been brought outside of the respective statute of limitations applicable. The drug maker proposed that Judge Seibel rule on a motion to dismiss in at least one case, which may serve as an “exemplar” for Mirena statute of limitations arguments in other cases.

The statute of limitations periods vary from state-to-state, but generally require that any legal action be filed within a certain amount of time after a plaintiff knew or reasonably could have discovered the existence of their cause of action.

Bayer argues that since the injuries allegedly caused by IUD birth control implants are immediately obvious, the Mirena statute of limitations should start running upon the diagnosis of the injury. Following a conference before Judge Seibel on February 26, Truitt’s claim was identified as a test case for the statute of limitations argument.

According to the motion filed, Bayer maintains that Truitt’s claim is time-barred under the two year statute of limitations of both Texas, where she brought the action, and in her home state of Indiana. Truitt’s complaint was filed on September 26, 2013, more than two years after she was diagnosed with a perforated Mirena, which had migrated out of her uterus and into her abdomen, resulting in surgical removal of Mirena on July 9, 2011.

“Because Plaintiff admits that she was injured more than two years before filing suit, and that she discovered her injury and its connection to Mirena more than two years before filing suit, all of her claims are time-barred, and no equitable tolling doctrine in Indiana or Texas saves her claims,” argues Bayer in the motion.

Plaintiffs’ response to the Motion is due on April 24, with any reply from Bayer due by May 8.

Mirena IUD Injury Lawsuits

Mirena is a long-lasting form of birth control known as an intrauterine device, or IUD, which is implanted by doctors to provide protection against pregnancy for up to five years.

Bayer introduced Mirena in 2000, aggressively promoting the IUD as a hassle-free form of birth control. However, a growing number of women and their doctors have reported problems where the Mirena IUD migrated from its initial implant location, perforating the uterus and other organs, causing infections and abscesses, and leaving women unknowingly unprotected against the chance of pregnancy.

Since 2000, more than 70,000 adverse events have been filed with the FDA involving Mirena IUD problems, including at least 5,000 cases involving women who indicated that Mirena migrated out of place since 2008, and 1,322 reports where the Mirena IUD punctured the uterus.

Bayer has attempted to defend the cases, arguing that information about the risk of perforation was included on the warnings provided with the IUD. However, plaintiffs maintain that the previous warnings were vague and misleading, suggesting that the risk of injury only exists at the time of insertion. Most of the complaints involve women who found that the Mirena migrated spontaneously, often long after the IUD was successfully placed in the uterus.

As part of the coordinated pretrial proceedings before Judge Seibel in the MDL, a small group of cases are being selected as early test cases, which will be scheduled for “bellwether” Mirena trials to help the parties gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation. While the outcomes of these early trials will not be binding in other cases, it may influence future Mirena settlement negotiations to avoid hundreds of individual cases going before juries throughout the country.