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Louisiana Woman’s Mirena Injury Lawsuit Survives Motion to Dismiss

A Louisiana woman’s Mirena injury lawsuit has survived a motion to dismiss by Bayer Pharmaceuticals.  A federal judge ruled on September 23  that new information set forth in Latoya Thompson’s affidavit create an issue of fact over whether her Louisiana Product Liability claims were filed in a timely manner.

Ms. Thompson and her husband are suing Bayer over its intrauterine birth control device, Mirena.  They are bringing claims under the Louisiana Product Liability Act, arguing that Bayer failed to alter Mirena’s packaging to reflect the number of adverse events reported.  They claim that the packaging overstated the device’s effectiveness while understating its safety concerns.  The plaintiffs also argue that Bayer did not adequately inform them of risk information and contraindications associated with Mirena.

Latoya Thompson had the Mirena IUD  inserted on June 21, 2011.  She claims to have suffered pain at the time of the insertion.  Approximately one week later, the device fell out on its own.

Plaintiff’s affidavit alleges new facts

Bayer moved to dismiss Ms. Thompson’s claims.  The defendant argued that the claims were not filed within one year from the time of the plaintiff’s alleged injuries, and thus are barred under the statute of limitations.  As part of her opposition to the defendant’s motion to dismiss, however, Ms. Thompson submitted an affidavit in which she alleges new facts.  In the affidavit, she states that she had a Mirena device for five years and did not experience any problems.  She only began to experience the problems alleged in the complaint after the second device fell out in June 2011.  In May 2012, Thompson was hospitalized for her symptoms.  In February or March of 2013 she “saw a television advertisement linking Mirena to the very conditions she had when she was hospitalized,” according to the affidavit.  She filed her Mirena injury lawsuit against Bayer on May 22, 2013.

The Louisiana Products Liability governs all lawsuits in Louisiana stemming from injuries caused by a manufacturer’s products.   The statute of limitations under the Louisiana Products Liability Act is one year.   It begins to run when the plaintiff has actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.

Bayer argued that the court cannot properly consider the unpleaded and contradictory facts contained in the new affidavit.  Judge Zainey of the U.S. District Court for the Eastern District of Louisiana noted, however, that the courts may consider materials outside the pleadings.  He ruled that the affidavits create an issue of fact as to whether the complaint was filed in a timely manner.  Therefore, he denied the motion to dismiss the Louisiana Product Liability claims.

The judge did grant Bayer’s motion to dismiss any non-LPLA claims, ruling that the LPLA provides the exclusive remedy for harm caused by a manufacturer’s product.  He ruled that the LPLA expressly states that it establishes the exclusive theories of liability for claims against a manufacturer for damages caused by its product.  Furthermore, he noted that the plaintiffs did not raise any arguments in opposition to this aspect of the defendant’s motion to dismiss.   The judge also dismissed plaintiffs’ claims for punitive damages, ruling that the LPLA does not authorize this type of recovery.

Mirena IUD litigation is expanding

There are more than 150 Mirena lawsuits pending in New Jersey against Bayer, in addition to claims coordinated in federal court against Bayer.  Many of these lawsuits involve “device dislocation,” which refers to a condition in which the IUD migrates to other parts of the woman’s body or becomes embedded in the uterus.  According to complaint reports from the Food and Drug Administration, 4,775 women have reported “device dislocation” since 2008.   Another 1322 have reported uterine perforations since 2008.  There are currently 2 million women using the Mirena IUD.

Other Mirena side effects include an increased risk of pelvic inflammatory disease, sepsis, ecoptic pregnancy, ovarian cysts, and irregular bleeding and amenorrhea.