Harnessing a successful tactic used in Mirena IUD litigation two years ago, defendants in other Mass Tort cases are using a “mass production method” to dismiss plaintiff cases where the statute of limitations has run.
“One mass production method to knock out cases where the SOL has run is to set up a procedure for the defendant to challenge cases in groups, applying their facts to some precedents established in lead cases,” says Paul D. Rheingold, Of Counsel with Rheingold, Valet, Rheingold, Ruffo & Giuffra LLP in New York.
Step one: In the Mirena IUD litigation, at the defense’s bequest the MDL judge established a mass statute of limitations evaluation procedure. First she adjudicated a “typical” case where the statute of limitations period in the state had run when suit was filed, as timed from the point when plaintiff learned that the IUD had embedded. She granted the defense motion in that case and dismissed it.
Step two: Then, as planned, defendant moved in waves of cases to dismiss, alleging the facts to be the same as the test case.
“It seems that Bayer attacked about 179 cases on the SOL in waves (out of several thousand filed). Of these, 46 opposed the motion, but all were unsuccessful. Almost all of the remainder were dismissed voluntarily or did not oppose the motion. Thus, it seems that Bayer had some modest success in repruning the volume,” Rheingold says
“In most MDLs, the defendant picks off cases one-by-one and seeks summary judgment on a SOL defense, generally in bellwether cases after there has been full discovery. That appears to me the best solution to the potential SOL defense,” he says.
As it turned out, the U.S. District Judge presiding over all federal Mirena IUD litigation granted summary judgment, dismissing at least 1,300 product liability lawsuits against Bayer, according to Aboutlawsuits.com.
Following several years of pretrial litigation, U.S. District Judge Cathy Seibel in the Southern District of New York issued an order (PDF) on July 28, granting a motion for summary judgment filed by Bayer. The decision came following a ruling in March, in which the judge excluded the testimony of several plaintiffs’ expert witnesses, leaving them without the ability to establish causation in their cases.