Bayer is still trying to shake liability for the thousands of injuries its Mirena Intrauterine Device (IUD) has caused. Back in March, they convinced U.S. District Judge Cathy Seibel to bar certain of plaintiffs’ expert witnesses from offering testimony, figuring that without expert testimony on causation, plaintiffs would lose. However, the case hasn’t been dismissed. Yet. Bayer filed a motion for summary judgment – legalese for a judgment in one party’s favor based on the entire case’s merits or on certain issues – on May 4, 2016. Now, Mirena plaintiffs prepare response to Bayer’s summary judgment motion.
Bayer is still trying to shake liability for the thousands of injuries its Mirena Intrauterine Device (IUD) has caused. Back in March, they convinced U.S. District Judge Cathy Seibel to bar certain of plaintiffs’ expert witnesses from offering testimony, figuring that without expert testimony on causation, plaintiffs would lose. However, the case hasn’t been dismissed. Yet. Bayer filed a motion for summary judgment – legalese for a judgment in one party’s favor based on the entire case’s merits or on certain issues – on May 4, 2016. Now, Mirena plaintiffs prepare response to Bayer’s summary judgment motion.
The piece I published in March pointed out the gigantic holes in Bayer’s contentions that the plaintiffs couldn’t prevail without expert testimony on causation. Their logic is so flawed that, pardon my geekiness, it would make a Vulcan’s head explode. Nevertheless, the motion is before the court and the future of the multidistrict litigation (MDL) rests on the plaintiffs’ response and Judge Seibel’s decision.
In addition to filing the motion for summary judgment, Bayer also filed a civil Rule 56.1 statement of material facts and attorney Shayna Cook’s statement supporting the motion. Rule 56.1(a) states that:
“Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.”
In plain English, that means that Bayer believes the plaintiffs have no real issue worth taking to trial. Because thousands of women with very similar injuries (perforated uteri) just coincidentally happen to have Mirena IUDs couldn’t possibly mean that Bayer’s product could be the cause, right? That’s what Bayer thinks.
Never mind the fact that, when checked by doctors, the Mirena IUDs in these injured women are often nowhere near their uteri! There is plain visual evidence that the device migrated. Unless Bayer equipped Mirena with a transporter device or had the IUDs manufactured by Hogwarts graduates, there is only one way the things could have ended up somewhere they aren’t supposed to be: uterine perforation.
Hold onto your hats. Here is item #2 from Bayer’s Rule 56.1 statement:
Plaintiff’s theory of secondary perforation has not been proven to occur.
So, which is it, Bayer? Are the things beaming themselves all over women’s bodies or did some less-than-ethical wizards put uteri perforatum spells on Mirena? I’ll wait here while you try to come up with a somewhat coherent, logical answer. Naw, I changed my mind. I’d prefer not to die in my desk chair as I surely would were I to wait that long.
What’s next for the plaintiffs? They recently filed a request with Judge Seibel for leave to submit a sur-reply to Bayer’s motion for summary judgment. A sur-reply is another reply to an already filed and fully briefed motion. In this case, it’s an additional reply to Bayer’s motion for summary judgment. The plaintiffs’ attorneys requested permission to file a 10-page sur-reply.
Just yesterday, Judge Seibel gave them leave to file a 5-page sur-reply by July 6. In a handwritten note on the order, she said, “Application granted. Although the court doesn’t see the need for a sur-reply because no new issues were raised in defendant’s reply paper, in light of the importance of this motion, Plaintiffs may submit a sur-reply, not more than 5 pages, by July 6, 2016.”
So, we wait for the sur-reply and, ultimately, Judge Seibel’s decision.
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