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Second Circuit Affirms Orders Dismissing All 1200+ Cases in Mirena Perforation MDL

October 2017

On October 24, 2017, the Second Circuit affirmed the MDL Court’s Daubert and summary judgment orders dismissing more than 1200 product liability cases in which plaintiffs alleged post-insertion perforation and migration of the Mirena intrauterine contraceptive system. This decision preserves the major MDL victory secured for Goldman Ismail clients Bayer Healthcare Pharmaceuticals Inc., Bayer Pharma AG, and Bayer Oy.

In a summary order found here, the Second Circuit specifically held that MDL Judge Cathy Seibel properly excluded all of Plaintiffs’ general causation expert testimony and then granted summary judgment to Bayer in “its careful and well-reasoned Opinion and Order.” In upholding the exclusion of plaintiffs’ experts ­– deposed by Goldman Ismail partners Ken Baum, Shayna Cook, and Tarek Ismail – the Second Circuit reasoned that “[n]ot only do the experts fail to identify any authorities that directly support the existence of secondary perforation, but what scientific authority there is casts doubt on the phenomenon’s existence.” The experts also “lacked pre-litigation expertise of the phenomenon of secondary perforation and developed their theories for litigation,” and then without support “assumed the existence of the very phenomenon in dispute.” Without any expert testimony on general causation, the Second Circuit held that summary judgment was correctly granted because “no reasonable juror could find general causation more likely than not based on Plaintiffs’ admissible evidence.”  

Shayna Cook serves as lead national defense counsel in the Mirena perforation MDL. Brian O’Donoghue is national coordination counsel. Kenneth Baum, J.D., M.D. leads the national science and expert team. Other team members include Emma Neff, Allyson Miller Julien, and Michael Casner.

Press coverage of the Second Circuit’s decision is available here, here, and here.