The U.S. Court of Appeals for the Second Circuit has affirmed the dismissal of litigation in which plaintiffs sought recovery for injuries they alleged were caused by Bayer’s intrauterine contraceptive system, Mirena®. Nearly 1,300 cases were certified as part of an MDL in 2013; Judge Cathy Seibel of the U.S. District Court for the Southern District of New York dismissed the cases in July 2016. Shook Partner James Shepherd led a Shook team of attorneys, analysts, paralegals and support staff who represented defendants-appellees Bayer HealthCare Pharmaceuticals, Inc., Bayer Pharma AG and Bayer Oy on appeal and in the district court.
In its summary order, the Court of Appeals found that the district court had properly excluded the plaintiffs’ experts under Daubert, finding “numerous problems” with the proffered testimony. The court said three of those problems were “particularly” noteworthy; the experts’ opinions as to causation “are not accepted in the wider obstetrics and gynecological scientific community”; “the experts lacked pre-litigation expertise in the phenomenon of secondary perforation” [uterine injury alleged to have occurred after initial insertion]; and that “finding no direct support in the literature for secondary perforation and having conducted no prior research on the subject, the experts all assumed the existence of the very phenomenon in dispute and then hypothesized how it could occur.”
The court also found that the lower court properly granted summary judgment, as all 50 states require expert testimony to prove causation. Here, the court said, plaintiffs argued that dicta in several cases suggested that party admissions could be substituted for expert testimony. “Assuming arguendo that they could, the putative admissions proffered by Plaintiffs are simply not enough to establish general causation,” the court said.
The case is In Re: Mirena IUD Prods. Liab. Litig., No. 16-2890 (2d Cir., summary order issued October 24, 2017).