Although Bayer petitioned the New Jersey courts to consolidate Mirena IUD cases, Bayer is now opposing consolidation in the federal courts.
This latest battle began when plaintiff’s counsel filed a motion with the U.S. Judicial Panel on Multidistrict Litigation (JPML) to consolidate the federal cases in the Northern District of Ohio. However, soon after this Bayer argued that MDL will prejudice the company. Bayer contends that one lawsuit is already scheduled for trial in May of this year. Bayer says that it has spent significant resources defending the case. If the JPML orders consolidation in federal court Bayer believes that it will be forced to start over and duplicate the time consuming process of discovery.
Further, Bayer argues that an MDL will encourage plaintiffs to file meritless claims. Additionally, the company says that the cases currently filed do not meet the commonality requirement because there are no injuries in common in every of the 8 pending federal cases. The most common injury, uterine perforation, has only been plead in 6 of the 8 cases. Further, Bayer argues that it has warned of the risk of uterine perforation and that there will be no need for pervasive discovery on the issue.
Although Bayer had originally requested consolidation in New Jersey courts in August, the corporation says that procedural irregularities in New Jersey made adjudication of the claims in separate state districts impossible. With the federal cases, on the other hand, Bayer argues that each federal court could just as easily handle the claims as any other federal court.
The plaintiffs took issue with Bayer’s assertions. The plaintiffs argue that Mirena labels did not actually warn against uterine perforation. Plaintiffs also believe that once consolidated hundreds of similar lawsuits will be filed.