WRITTEN BY PAUL D. RHEINGOLD
The NuvaRing birth control litigation has taken a major step forward with the selection of cases which will be tried first. These are called bellwether cases. The idea is that the trial of a few cases will help shape the litigation, perhaps ending up with a means of evaluating the merits of all cases. NuvaRing is a vaginal contraceptive, containing an estrogen and progestin.
In the federal cases, pending in St. Louis, where our firm is one of the lead counsel, 26 cases have been selected. In the New Jersey state cases, again headed by our firm, 10 cases have been selected to go forward. The method of selection is that half are selected by the plaintiffs, half by the defendants.
Of course, the plaintiffs selected their best cases, women who had virtually no risk factors other than the NuvaRing to explain their pulmonary embolisms and DVTs--as well as strokes and death. And, equally predictable, the defendants chose cases with many risks factors--recent surgery, immobilization, long flights and other reasons to be sedentary. Also women who were smokers, obese or had blood factors predisposing to clots. These bellwether cases are now being worked up by the parties. This starts with the deposition of the woman, and her husband if married. Then the doctors who prescribed and treated the woman. Later, the sides present reports from their experts, and the cases move toward trial, which are expected for the summer of 2010.