NJ Supreme Court Asked to Reconsider Centralization of Mirena Lawsuits

As the number of Mirena IUD lawsuits continues to grow in New Jersey state court, a request has been filed with the state’s Supreme Court to reconsider a decision made last year to deny centralization all cases before one judge as part of an MCL, or multi-county litigation.

Mirena is a levonorgestrel-releasing intrauterine device manufactured by Bayer Healthcare, which is also often referred to as an IUD or IUS (intrauterine system).  The small T-shaped device is a long-acting form of birth control, which is inserted into the woman’s uterus to prevent pregnancy for up to five years.

While the IUD has been promoted as a safe and effective alternative to the daily birth control pill, an increasing number of women are reporting that they suffered painful and debilitating complications from Mirena, when the device punctured the uterus and migrated to other areas of the body, often causing infections, organ damage and the need for surgical removal of the Mirena IUD.

Second Request for Multi-County Litigation in New Jersey for Mirena

In August 2012, a request was filed by Bayer to centralize the Mirena litigation in New Jersey state court, indicating that at least 16 lawsuits were already pending in the state court system. The drug maker indicated at that time that it expected a large number of additional complaints to be filed in the state’s court system, as that is where the company is headquartered. However, in January 2013, the New Jersey Supreme Court denied the request.

On March 6, a Request for Reconsideration (PDF) was filed on behalf of plaintiffs, indicating that the number of cases pending in the Superior Courts of New Jersey has now increased to more than 60 cases, and that “numerous additional actions” will be filed in the coming weeks.

In a response (PDF) filed on March 7, Bayer Healthcare confirmed that it agrees that the Request for Reconsideration is appropriate in light of the new cases served on the drug maker since the Court’s denial of their original application.

Although the vast majority of pending matters have been filed in Morris County Superior Court, Bayer has indicated that all cases should be consolidated in Middlesex County before the Honorable Jessica Mayer, J.S.C.

In a related response (PDF) filed on behalf of plaintiff Tammy DeLeon on March 12, it was requested that the cases be centralized for pretrial management before the Honorable Brian R. Martinotti in Bergen County, New Jersey.

According to a Notice to the Bar (PDF) issued by Glenn A. Grant, Acting Administrative Director of the Courts, on March 21, anyone wishing to comment on or object to this new application should provie comments or objections, together with relevant supporting materials, by April 21, 2013.

Pending Request to Establish Federal Mirena Multi-District Litigation (MDL)

The renewed request to centralize the Mirena litigation in New Jersey state court comes as the U.S. Judicial Panel on Multidistrict Litigation is currently considering whether to order similar consolidated proceedings at the federal court level, where dozens of additional lawsuits have been filed. Oral arguments on the centralization of the federal litigation were heard by the U.S. JPML on March 21.

Such consolidation is common in complex pharmaceutical litigation in the federal court system, where a large number of claims are brought involving the same or similar products, and Mirena lawyers investigating claims have suggested that hundreds, if not thousands, of lawsuits are likely to be filed against Bayer in courts throughout the country.

While Bayer has supported centralization of the New Jersey state court litigation, the drug maker has opposed the formation of a federal Mirena MDL, arguing that it would prejudice their ability to defend several lawsuits that are already close to trial. Bayer also argued that the federal litigation does not involve sufficiently common issues of fact and law to require centralized management, maintaining that the cases will be dominated by individual facts.

The drug maker has indicated that the Mirena warning label already provides information about the risk of perforation, so there is no need for extensive discovery about their knowledge about the risk of this complication from Mirena. While the Mirena warning label does include information on the risk of perforation, plaintiffs argue that the language suggests that these problems only occur during insertion and that the drug maker failed to adequately warn about the risk of spontaneous migration, which may occur long after Mirena insertion.

A decision about whether an MDL will be established for the federal Mirena lawsuits is expected this week. If the cases are centralized, all lawsuits pending in U.S. District Courts throughout the country will be transferred to one judge for coordinated pretrial proceedings. However, if a Mirena settlement or other resolution is not reached following discovery and any early bellwether trials, each lawsuit may be remanded back to the court where it was originally filed for an individual trial date.