Paragard IUD Lawsuit Settlement Amounts

December 10, 2024: Discovery Battle Over Contention Interrogatories

Defendants had requested an extension of time to answer contention interrogatories, arguing that their responses should be delayed until the pretrial conference. Plaintiffs opposed the extension, citing the active state of discovery and the need for timely information to prepare their case.

The MDL judge sided with the defendants in granting an extension but stopped short of permitting a delay until the pretrial conference. Instead, the court has stayed defendants’ obligation to respond and stated it would revisit the matter at the next discovery conference.

November 4, 2024: Trial Set for December 1, 2025

The MDL judge has scheduled the first copper IUD bellwether trial for December 1, 2025, and the second for February 2, 2026, pending “confirmation of availability from Defendants’ trial counsel.”

October 23, 2024: FDA Reportedly Look at Paragard IUD Label

The FDA is reportedly reviewing stricter labeling for intrauterine devices, including Paragard, following ongoing reports of breakage complications during removal. This regulatory scrutiny, prompted by nearly 40,000 adverse events reported in the last decade and this litigation, could push manufacturers toward giving a much-needed stronger warning and design modifications to make these products safer during removal.

It would not be a shock to see a new warning timed around a global Paragard settlement.

October 11, 2024: Paragard Defendant to Pay $450 Million to Settle Medicare Fraud

Teva Pharmaceutical Industries Ltd. has agreed to pay $450 million to settle allegations that it used charitable organizations to cover Medicare patients’ out-of-pocket costs as a way to pay kickbacks and increase sales of its multiple sclerosis drug, Copaxone. This settlement includes $425 million to resolve a lawsuit filed in Boston in 2020 as part of a broader investigation into drugmakers’ financial support of patient assistance charities. Additionally, the settlement resolves claims that Teva conspired to fix prices for generic drugs.

Maybe we can all agree that the allegations that Teva put profits over women’s best interest in the Paragard litigation are pretty plausible.

October 6, 2024: New Lawsuits in October

We talked in the last update about the litigation slowing down in terms of newly filed cases. Then 12 cases were filed in the first two days of October.

One of those lawsuits was on behalf of a Texas resident who has a story that will sound familiar. Her Paragard device, which was placed in Idaho in 2019 and later removed in Texas in 2022, broke during the removal procedure. As a result, she experienced device breakage and embedment, necessitating additional attempts to remove the remaining fragments. The complaint alleges that the defendants failed to adequately test the product, misrepresented its safety, and concealed information regarding the risks of breakage.

September 13, 2024: Statute of Limitations Dismissal

Teva contends that 236 lawsuits within the Paragard MDL are undeniably time-barred and should be dismissed.

The allegedly untimely cases fall into three main categories:

• Lawsuits where the statute of limitations starts on the date of the Paragard removal surgery.
• Cases blocked by the statute of repose, which prohibits claims after a specific period from the product’s sale or use.
• Claims where strict liability is barred by state law.

Defendants’ problem is that there are fraudulent concealment claims that should make the statute of limitations a matter for the jury. Even if these cases are dismissed—which is probably unlikely—they may still hold some settlement value because Teva/Cooper will not want to deal with an appeal at that point. Still, dismissal would likely reduce the settlement payout of these claims.

The good news is that if you are not one of these 236 plaintiffs? Teva’s strategy seems aimed at clearing these cases before a broader Paragard settlement. My take, and it is just my take, is that a Paragard settlement is likely near and everyone is trying to tie up loose ends before a settlement.

September 6, 2024: New Paragard Lawsuit

A Missouri woman has filed a new lawsuit Wednesday against Teva and Cooper in connection with injuries sustained from the use of the Paragard intrauterine device.

The plaintiff alleges – as every plaintiff in the MDL does – that the Paragard device broke during removal, causing injuries that include pain, suffering, mental anguish, and potential need for further surgeries. The lawsuit alleges counts of strict liability, negligence, breach of warranty, violation of consumer protection laws, and fraud. The plaintiff demands a jury trial and reserves the right to allege further complications or injuries.

August 27, 2024: Defendants Push Back on Motion to Compel

Defendants have filed a response opposing the plaintiffs’ motion to compel the production of custodial files. The plaintiffs argue, as we discuss in the last update, that the defendants have failed to identify relevant custodians and produce their files, despite a previous court order.

The defendants counter that the court never required ongoing identification of custodians and that the responsibility to request specific custodial files lies with the plaintiffs. They further argue that the plaintiffs have not provided a justifiable reason for requesting additional custodial files at this stage, making the request unduly burdensome and disproportionate.

The defendants also contend that they have acted in good faith by providing an updated list of custodians and have met deadlines for producing custodial files. They emphasize that the plaintiffs’ motion lacks a credible basis, as the plaintiffs have been aware of the custodians in question for years and have not previously requested their files. Defendants request that the court deny the plaintiffs’ motion, asserting that the plaintiffs’ request for all 31 custodial files is excessive and unsupported by the facts of the case.

Excessive how? Defendants argue that the production of all 31 custodial files is excessive but they have not convincingly demonstrated how this request would be unduly burdensome, especially in light of the potential relevance of these documents to the case.

August 21, 2024: Custodians Finally Revealed Two Years After Court Order Required Their Identification

Plaintiffs have filed a motion to compel the defendants to produce custodial files for 31 newly identified custodians who were revealed almost two years – two years! – after a court order required their identification.

This motion argues that the defendants delayed disclosing these custodians, thus hindering the plaintiffs’ ability to request and review pertinent custodial files as part of the discovery process. The plaintiffs contend that this delay has caused significant prejudice to their case, as the late disclosure has compressed their discovery timeline and limited their ability to conduct thorough investigations. They request the court to order the defendants to produce these files expediently and at the defendants’ expense to rectify the ongoing prejudice.

The back story is that there are new lawyers representing the defendants, Teva and Cooper, who were formally appointed in September 2023 and February 2024, respectively. According to the motion, the previous attorneys for the defendants had failed to meet their obligations under the custodial file protocol by not timely identifying relevant custodians and producing the required custodial files. The new counsel, upon taking over, threw the old lawyers under the bus and acknowledged deficiencies in the previous productions and undertook additional efforts such as re-interviewing custodians and gathering more documents, which led to the identification of 31 new custodians with potentially relevant information.

August 13, 2024: Defense Lawyers File Motion To Dismiss Many Cases Based On SOL

The defendants have filed motions to dismiss many of these cases, arguing that statutes of limitations or statutes of repose bar them. While a few cases are expected to be dismissed due to the statute of limitations, the statute of repose could pose an issue for some older cases in certain jurisdictions. A statute of repose sets a final deadline for filing claims, regardless of when the injury was discovered, which could lead to the dismissal of older claims.

This legal strategy foreshadows a potential settlement. Defendants want to get dismissed as many cases as possible through pretrial motions before entering settlement negotiations. By filing these motions, Teva and Cooper aim to reduce the number of active cases, limiting their liability and making the average settlement per case a more attractive number.

August 9, 2024: New Lawsuit Filed Directly In Paragard MDL

Another new copper IUD lawsuit was filed directly in the Paragard class action MDL using the short form complaint earlier this week. The plaintiff in this case originally had her Paragard IUD implanted in Georgia in 2017. Four years later, when she had it removed at a Planned Parenthood clinic in New York, the IUD fractured. The fracture left pieces inside of her, causing pain and requiring her to undergo further medical treatments.

July 10, 2024: Southern California Woman Joins Paragard MDL

A woman from southern California became the latest plaintiff to join the Paragard class action MDL. According to the short form complaint filed directly in the MDL, the woman attempted to have her Paragard IUD removed in July 2022. The IUD fractured during removal and she underwent a second procedure in October 2022 in an effort to retrieve the fractured pieces from inside her.

June 29, 2024: State Law in The MDL

Even though multidistrict litigation is a national process designed to streamline complex cases involving many plaintiffs across different states, the laws applied to these cases are state laws, which can vary significantly. This presents a challenge in determining which state’s laws should govern each case within the MDL.

In the Paragard IUD MDL, specific guidelines were issued by the MDL judge to address this issue: For cases transferred from another federal district court under 28 U.S.C. § 1407, the state choice-of-law rules from the transferor court (the court where the case was initially filed) will apply unless the case was filed in an improper venue or jurisdiction. If the venue or jurisdiction was improper, defendants can challenge the application of those state rules.

For cases filed directly in the MDL, the state choice-of-law rules from the district and division identified in the Short Form Complaint will apply, provided the identified court has proper venue and jurisdiction; otherwise, defendants may challenge these rules.

Plaintiffs cannot alter the applicable choice of law by amending the venue in their complaints post-filing, except within a specific timeframe and with consent or court approval. Additionally, no motions to resolve choice-of-law issues can be filed until after the initial bellwether trials unless the applicable law is undisputed. Any changes to the court-set deadlines require court approval for good cause. This structured approach ensures that the diverse state laws are applied fairly and consistently in the consolidated MDL cases.

The law that is applied to the case can be a big deal. One of the most significant differences lies in the treatment of punitive damages, which are awarded to punish defendants for particularly egregious behavior and to deter similar conduct in the future, especially when it comes to punitive damages. Some states have caps on punitive damages or require a higher standard of proof to award them, while others do not have such limitations, potentially leading to significantly higher awards. These discrepancies can greatly affect the strategies of both plaintiffs and defendants, the potential compensation available.

One battlefield in mass tort cases is what law applies to cases in the MDL. The issue is how the choice-of-law analysis should be applied uniformly across the Paragard MDL-2974, which is crucial for determining which state laws govern the cases. Plaintiffs seek flexibility in determining the applicable law for each case individually; defendants advocate for a uniform approach.

Defendants argue that Plaintiffs are attempting to manipulate the choice-of-law process to their advantage without providing any solid legal basis for their position. Defendants maintain that the choice-of-law analysis is a purely legal issue that should be resolved on an MDL-wide basis to ensure consistency and fairness. They emphasize that resolving this legal question now will provide clarity and prevent delays in the litigation process.

In contrast, Plaintiffs argue that the choice-of-law issues are too individualized to be resolved collectively. They cite the need for case-specific determinations despite the defendants’ assertion that such an approach leads to unnecessary complications and delays.

May 6, 2024: Paragard Lawyers Dispute Issues Surrounding ESI Protocol and TAR

Paragard lawyers are disputing the interpretation and application of the ESI Protocol concerning its Technology Assisted Review (TAR) systems and its implications on document production transparency and timeliness.

Plaintiffs’ lawyers are frustrated. They feel left out of critical decisions and question the sufficiency and integrity of the document review process because of the defendants’ alleged unilateral modifications to TAR.

Specifically, the complaint is that this unilateral action violated the agreed-upon ESI protocol, which mandates that both parties meet and confer about the TAR methodology and workflow before its implementation. The plaintiffs were informed only during a document summit in February 2024 about the retraining of TAR despite the process being in motion for several months.

The defense lawyers argue that they have adhered to the necessary protocols and that the plaintiffs’ requests for further involvement and transparency are excessive and unfounded.

Judge May will decide whether the plaintiffs’ concerns justify a deeper inquiry into the defendants’ document production methodologies.

April 3, 2024: Spotlight Investigative Report Alleges That CooperSurgical Ignored FDA Warning

A recent investigative report from Spotlight on America revealed that the FDA had told the maker of the Paragard IUD, CooperSurgical, that it had concerns about the potential for the IUD to break during removal, but CooperSurgical did nothing about it. The FDA concerns were submitted to CooperSurgical following an FDA inspection of one of its Paragard IUD manufacturing facilities. The company appears to have completely ignored this warning from the FDA.L

January 22, 2024: New Paragard Lawsuit Filed Friday

A new Paragard copper IUD lawsuit was filed on Friday. A Texas woman alleges injury from breakage when her OB/GYN attempted to remove the device in 2016.

How does she circumvent the statute of limitations? Her complaint alleges tolling/fraudulent concealment. Under this legal principle, the statute of limitations for filing a Paragard lawsuit is paused (or tolled) due to a defendant’s intentional hiding of their wrongdoing.

In such cases, the time limit to bring legal action does not begin until the plaintiff discovers or should have reasonably discovered the fraud or deceit. This principle ensures that plaintiffs have a fair opportunity to seek justice even when defendants have deliberately concealed their harmful actions.

January 2, 2024: Schedule Set For First Paragard IUD Lawsuit Trial

Judge May set out the schedule for the first Paragard IUD lawsuit to trial. This order sets forth various deadlines for case-specific activities, including discovery, expert disclosures, and motions:October 31, 2023: Judge Responds To Unsubmitted Plaintiff Fact Sheet

Plaintiffs in this litigation must fill out a Plaintiff Fact Sheet (PFS) without biographical information and facts about their Paragard lawsuit. However, some did not turn theirs in on time. So, the MDL judge basically said, “Hey, if you didn’t do this, you need to tell us why, or we might drop your case.”

There are six categories for deficient plaintiffs who failed to file a PFS properly:

• Category 1: People who didn’t give a reason for missing the deadline.
• Category 2: People who agree their cases should be dropped.
• Category 3: People who messed up their forms and won’t fix them.
• Category 4: Cases where the lawyers can’t find the person anymore and admit the forms weren’t done right. The judge said their cases are officially dropped for these four categories and cannot be brought back.
• Category 5: People who need more time to finish their forms. They had 21 days from the court’s order on October 5th to turn them in. If they don’t, their cases will be dropped too.
• Category 6: People who turned in their forms late but after the Court’s warning. Their forms are accepted, and they’re good to go.

This is generally a good development. Getting rid of Paragard IUD lawsuits that are now really lawsuits allows everyone to move forward on the real cases that matter.

October 2, 2023: Paragard MDL To Focus On Factual Discovery For Bellwether Candidate Pool Cases

As set forth in the recent Case Management Order, the focus in the Paragard MDL for the next few months will be case-specific factual discovery in the bellwether candidate pool cases. Depositions of the plaintiffs in these cases will take place over the course of this month. The purpose of this discovery phase is to give the parties more information about bellwether pool cases so they can assess their strengths and weakness.

June 30, 2023: CMO Requires All Plaintiffs To Submit Plaintiff Fact Sheet

The Court’s PFS CMOs required all plaintiffs involved in MDL No. 2974 to submit a completed Plaintiff Fact Sheet (PFS) and signed authorizations to the Defendants by November 4, 2022. So… long ago. There are always mass tort plaintiffs who bring claims that either do not have viable claims or simply decide not to pursue a lawsuit. In this case, 132 Paragard plaintiffs are in that boat.

The deadline to submit the required information or provide an explanation for not doing so has passed, and the MDL judge will likely dismiss those claims. This allows a greater focus on those with serious cases, which may pave the way for a future global settlement.

June 19, 2023: Paragard MDL Continues To Move Slow

This litigation is moving slowly. But the statute of limitations is an issue if you are looking to file a Paragard lawsuit. The message: if you have a claim, call a Paragard lawyer—us, whoever—now.

June 2, 2023: Initial Bellwether Discovery Pool Close To Finalization

The initial pool of Paragard bellwether discovery cases is close to being finalized. Over the next few weeks, these cases will go through an accelerated fact discovery phase involving depositions of the plaintiffs and other fact witnesses. The information obtained from this discovery phase will then be used to narrow down the pool to six cases.

May 1, 2023: Judge May Expresses Optimism Towards Possible Settlement

At a recent court conference, Judge May closed a hearing, expressing optimism that the Paragard settlement mediator, Gino Brogdon Sr., will be able to push settlement talks forward and encouraged the parties to get moving toward that end. This makes us optimistic, but that optimism is chilled by how far away the first trial is. Because trial dates put pressure on defendants to offer reasonable settlement amounts.

February 25, 2023 Update: Judge Establishes Procedure For Selecting Bellwether Test Trial Representatives

The presiding judge in the federal Paragard IUD lawsuits has established a procedure for selecting a group of 10 representative cases for the initial bellwether trials slated for 2024. Fifteen cases will be nominated by the plaintiffs for the bellwether pool, which will then be reduced to ten through a process of eliminations and challenges from both parties. These ten cases will undergo detailed, case-specific discovery, with three ultimately chosen to proceed in the initial bellwether trials starting in Georgia in March 2024.

What is a bellwether trial? A bellwether trial is a legal process employed in mass tort litigation to gauge how juries might respond to the evidence and testimonies that are expected to recur across many similar cases. This approach involves preparing a small, representative set of cases for early trial dates. The outcomes of these trials are used to guide decisions in future trials and potential settlements.

February 5, 2023: Bellwether Process Remains A Work In Progress

The bellwether process in the Paragard MDL remains a work in progress 25 months after the MDL class action was established. A status conference was held before Judge May this week. Still, instead of finalizing the bellwether process, she simply offered “guidance” to the parties on their competing proposals for how the bellwether program should be handled. In the meantime, corporate depositions are getting underway for the primary defendants, Cooper Surgical and Teva Pharmaceuticals.

January 25, 2023: Judge M. Gino Brogdon Sr. Appointed As Settlement Mediator

Looking for some good news in the Paragard litigation? A retired Fulton County, Georgia judge, M. Gino Brogdon Sr., was appointed by the Paragard class action judge to serve as a settlement mediator.

We do not think Teva and Cooper Surgical are on the phone with this mediator right now, trying to set up settlement talks. A trial is too far away for the defendants to feel any urgency to settle these lawsuits. Brogdon’s appointment was made by the Court and not at the parties’ request, so this is not a sign that a settlement might be in the works already. That said, any direction in the settlement path for victims who have already waited too long for compensation is good.

January 9, 2023: 934 Adverse Incident Reports Involving Paragard IUD Fracture Reported To FDA In 2022

934 adverse incident reports involving fracture of the Paragard IUD during removal were reported to the FDA Adverse Event Report Database in 2022. This is three times the number of events reported for the Paragard just two years ago, and it suggests that we could see continued growth in the number of Paragard product liability cases in the MDL in 2023. It also shows—importantly—that Paragard removal breakage is more common than the defendants claim.