Paragard (courtesy photo)
A growing number of lawsuits filed through the Paragard intrauterine device are products of plaintiffs’ solicitation, “not a real mass killing,” according to Teva Pharmaceuticals USA Inc. and other defendants in the cases.
Teva and its affiliates are battling to create a multi-county lawsuit for more than 55 lawsuits related to the Paragard IUD, a contraceptive that can break apart during surgical removal and leave pieces in a woman’s uterus. In a motion for transfer filed with the US Department of Justice on Sept. 24, the lawyers of the plaintiffs wrote that “hundreds of other lawsuits are likely”.
Teva and The Cooper Companies Inc. turned down an MDL, finding in court records that lawyers had filed 75% of their cases in 2020, despite the product’s been in the market for more than 30 years.
“This is about lawyer advertising and an increase in advertising advertised by the applicant’s lawyer, not about a real mass killing,” wrote Ulmer & Bern partners Frederick Erny and Jeffrey Peck. “It’s a model that plays out in MDLs where cases are filed and added to the MDL, not because they are meritorious, but because cases are easy to file, avoid individual scrutiny and the number of cases to settle artificially increase. “
Erny and Peck did not respond to a request for comment.
“Companies across the country are being contacted by women who claim their Paragard IUD has been broken and caused injury,” wrote Timothy Clark of Sanders Phillips Grossman, one of the lawyers who filed the motion last month. “We advise readers and consumers to exercise caution when considering defendants’ comments on the litigation. Teva was recently sanctioned by federal court for abuse of litigation, 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 their television commercials about the risks of the Paragard IUD. And on October 14, a federal judge overseeing the multiple counties litigation over the opioid crisis sanctioned Teva and Allergan for failing to come up with a critical document for discovery.
The MDL panel has scheduled the Paragard cases for the December 3rd hearing.
In last month’s motion, Welling and Clark sought an MDL in the Central District of California before District Judge John Kronstadt, who oversees four of the cases. As an alternative, 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 version of cases using IUDs, which are devices surgically implanted to prevent pregnancy. Previous cases involving the Mirena IUD stalled after judges threw plaintiffs’ experts on a summary judgment.
The U.S. Food and Drug Administration approved the Paragard IUD in 1984.
Teva and Cooper found that the products had warnings on the labels, suggesting that the mediator doctrine they had learned could eradicate many cases due to the actions of individual doctors. In fact, federal judges in California and Nebraska dismissed individual Paragard IUD cases in 2017 and 2019 for these reasons.
“The most common issue with plaintiffs’ no-warning claims is that the Paragard label’s clear warnings of the possibility of embedding, breakage, and difficult removal (including possible surgery) were found by two federal district courts to be appropriate in issuing a summary judgment because these risks were specifically mentioned on the label, ”they wrote.
If the MDL panel were to coordinate the cases, they suggested District Judge Cathy Seibel of New York’s southern borough, who oversaw Mirena’s IUD complaints, or District Judge James Moody of mid-borough Florida. Should the panel choose California, they proposed District Judge Anthony Battaglia from the southern district, who passed the 2017 ruling in Teva’s favor, or District Judge Timothy Batten from the northern Georgia district.