File Mirena Lawsuits Sooner than Later

February 19, 2016, 10:30AM. By Jane Mundy

Bergen County, NJFour Mirena lawsuits against Bayer were thrown out last month - the judge ruling that the women had filed too late.

There are several reasons why the lawsuits weren’t filed within the statute of limitations (SOL). One reason is that the SOL varies by state.

Another reason could be the attorney’s fault. For example, one Mirena plaintiff is suing three Texas laws firms alleging they let her claim lapse past the SOL date. “It is unfathomable that three separate law firms specializing in products liability lawsuits would have failed to follow one of the most elementary legal principles: File the lawsuit within the statute of limitations,” David Eric Kassab of the Kassab Law Firm told Law360. (If you haven’t heard from your Mirena lawyer lately, be pro-active - call now.)

Of course, experienced attorneys would be aware of state statutes, such as California’s two-year SOL, a technicality that caused 31 Mirena lawsuits to be dismissed, including cases in Louisiana and other states, in 2014. (Here is a detailed explanation of the Mirena MDL dismissal.)

And again in December 2015, a New York federal judge tossed out 10 claims in a Mirena MDL, finding that three cases were filed too late and seven hadn’t submitted fact sheets (that must be submitted to the court within 60 days of filing). The judge based his decision on the SOL in their states - some were time-barred; and seven cases hadn’t submitted fact sheets. But most important, the decision was based on a July 2014 decision, which found the SOL began when the patient’s IUD was removed from a part of her body other than her uterus, alerting her that she had been harmed, according to Law360.

The women argued that their claims didn’t accrue until they received information that their Mirenas migrated into their abdomens because of a defect in the IUDs. Bayer argued that the women’s claims began accruing when they found out from their doctors that their IUDs weren’t inside their uteruses anymore. In other words, the SOL starts when the patient first discovers her injuries.

One plaintiff in the MDL had the Mirena inserted in 2006, which was surgically removed from her abdomen in 2007, but she didn’t file suit until she saw a TV commercial about Mirena lawsuits - in 2013. Another plaintiff discovered her Mirena had migrated outside her uterus from an April 2011 X-ray, and filed suit in May 2013, just one month too late under the SOL in her state of Georgia.

But it isn’t over...

Plaintiffs’ attorneys responded. They insist that Mirena’s SOL should start when the women first discovered that Bayer’s alleged actions caused their injuries, and not when they first discovered the injuries, meaning that “Bayer’s fraudulent concealment” kept patients from realizing that Bayer was responsible for their injuries.

Plaintiffs’ attorneys argued in a letter that patients’ injuries were possibly the result of Bayer’s actions. According to topclassactions, the lower courts ruled in favor of plaintiffs, stating that that they were not necessarily aware that Bayer could be at fault, which would overturn Bayer’s motion to dismiss.

The MDL against Bayer is In Re: Mirena IUD Products Liability Litigation, MDL No. 2434, filed in the United States District Court for the Southern District of New York. The next court proceeding is scheduled for March 8, 2016.

The current case (Feb. 2016) is Medinger v. Bayer Healthcare Pharmaceuticals, case number 15-355, in the U.S. Court of Appeals for the Second Circuit.