A growing number of lawsuits filed over the Paragard intrauterine device are products of plaintiffs’ attorney advertising, “not a genuine mass tort,” according Teva Pharmaceuticals USA Inc. and other defendants in the cases.
Teva and affiliated companies are fighting a bid to create multidistrict litigation for more than 55 lawsuits brought over the Paragard IUD, a birth control device that can break apart during surgical removal, leaving pieces in a woman’s uterus. In a Sept. 24 motion to transfer, filed before the U.S. Judicial Panel on Multidistrict Litigation, plaintiffs’ lawyers wrote that it was “likely that hundreds of other actions will be filed.”
Teva and The Cooper Companies Inc. opposed an MDL, noting in court papers filed Friday that lawyers filed 75% of their cases in 2020, despite the product being on the market for more than 30 years.
“This is about attorney advertising and an uptick in that advertising promoted by movant’s counsel, not a genuine mass tort,” wrote Ulmer & Berne partners Frederick Erny and Jeffrey Peck. “It portends a model that plays out in MDLs in which cases are filed and added to the MDL not because they are meritorious, but rather because cases can easily be filed, escape individual scrutiny and artificially inflate case counts for settlement.”
Erny and Peck did not respond to a request for comment.
“Firms all over the country are being contacted by women claiming that their Paragard IUD broke and caused injuries,” wrote Timothy Clark, of Sanders Phillips Grossman, one of the attorneys who filed last month’s motion. “We advise readers and consumers to be cautious when considering defendants’ comments about the litigation. Teva was recently sanctioned by a federal court for abusing the litigation process, while Cooper was warned by the FDA for misrepresenting ParaGard’s risks in an advertisement.”
In 2019, the U.S. Food and Drug Administration sent a warning letter to a Cooper subsidiary about misleading claims in one of its TV ads about the risks of the Paragard IUD. And, on Oct. 14, a federal judge overseeing the multidistrict litigation over the opioid crisis sanctioned Teva and Allergan for failing to produce a critical document in discovery.
The MDL panel has scheduled the Paragard cases for its Dec. 3 hearing.
In last month’s motion, Welling and Clark sought an MDL in the Central District of California before District Judge John Kronstadt, who is overseeing four of the cases. As alternatives, they suggested District Judge Leigh Martin May, in the Northern District of Georgia, or District Judge Stephen Bough in the Western District of Missouri.
The suits are the latest iteration of cases involving IUDs, which are surgically implanted devices to prevent pregnancy. Previous cases involving the Mirena IUD faltered after judges tossed the plaintiffs’ experts on summary judgment.
The U.S. Food and Drug Administration approved the Paragard IUD in 1984.
Teva and Cooper noted that the products had warnings on the labels, suggesting that the learned intermediary doctrine could wipe out many cases based on the actions of individual doctors. In fact, they wrote, federal judges in California and Nebraska had dismissed individual Paragard IUD cases in 2017 and 2019 for those reasons, they wrote.
“The common issue relative to plaintiffs’ failure-to-warn claims is that the Paragard label’s clear warnings about the possibility of embedment, breakage and difficult removals (including possible surgery) have been found by two federal district courts to be adequate as a matter of law in granting summary judgment, because those risks were expressly warned about in the label,” they wrote.
Should the MDL panel coordinate the cases, they suggested District Judge Cathy Seibel, of the Southern District of New York, who oversaw Mirena IUD lawsuits, or District Judge James Moody, of the Middle District of Florida. Should the panel pick California, they suggested District Judge Anthony Battaglia, of the Southern District, who issued the 2017 ruling in Teva’s favor, or District Judge Timothy Batten in the Northern District of Georgia.