Albuquerque, NMAlthough a New Mexico federal judge said that a plaintiff’s Mirena IUD claim “shows a certain sloppiness and inattention to detail,” it did not warrant dismissal. Even though an order required the plaintiff to serve the defendant within 120 days of filing the complaint - Bayer was served after 120 days - the judge held that the Mirena lawsuit would go forward.
Plaintiff Melissa Beauprez was implanted with a Mirena IUD in June 2009. Two years later she told her doctor that she could feel the Mirena, she was suffering from back pain and wanted it removed. But the IUD had moved from Beauprez’s uterus: an abdominal x-ray and CT scan showed that it was lodged in her abdomen. She underwent surgery in July 2011 to remove the birth control device.
Beauprez filed a complaint against Bayer, alleging defective manufacturing and design, failure to warn, negligence, strict liability, breach of implied and express warranty, negligent and fraudulent misrepresentation, and fraud by concealment.
The complaint was first assigned to U.S. Magistrate Judge William P. Lynch. In July 2014, Judge Lynch stated that “it is the responsibility of the case filer to serve a copy of this Notice upon all parties with the summons and complaint.” But Beauprez did not serve Bayer. And again in November, Judge Lynch informed Beauprez that “no later than Dec. 17, 2014, Plaintiff must either effect service or provide the Court with a written explanation why service has not been effected.” Bayer was served with a summons and complaint on December 22, 2014. Five days late.
Bayer argued that Beauprez’s Mirena lawsuit should be dismissed because it failed to be served in a timely manner, i.e., she did not comply with the court’s notice in July. The court denied Bayer’s motion. Judge Lynch found that Beauprez’s attorney, Bryan L. Williams, had no deliberate disregard of his orders. Williams told the court that there was a misunderstanding between him and an out-of-state counsel regarding who was supposed to serve Bayer notice.
The case is Beauprez v. Bayer Healthcare Pharmaceuticals, Inc., CIV. NO. 14-649 JCH/CG.
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