Pennsylvania Essure Plaintiffs Can Proceed with Bayer Lawsuit
By Jay W. Belle Isle of Legal Reader – Bayer Lawsuit
March 24, 2016: Tuesday this week, Pennsylvania federal judge John Padova ruled that the five Pennsylvania Essure plaintiffs can proceed with their Bayer lawsuit. The women are suing Bayer over injuries caused by the company’s “permanent” birth control device. While Judge Padova found that some of the plaintiffs’ claims were preempted and dismissed them per Bayer’s motion, he also ruled that the premarket approval (PMA) status that currently protects Bayer and Essure from litigation did not prevent the plaintiffs from pursuing certain of their claims.
One claim, for fraudulent misrepresentation, was not pled sufficiently, according to Judge Padova and was thus dismissed. However, the plaintiffs’ negligent misrepresentation claim was preserved and leave given to the plaintiffs to refile their suits with more information.
Judge Padova said, “Here, the complaint alleges the substance of the alleged misrepresentations, which primarily appeared on Bayer’s website and in Essure brochures, that Bayer ‘intentionally made the statements so that plaintiff[s] would be induced to have Essure implanted,’ and that plaintiffs ‘justifiably relied’ on those misrepresentations prior to implantation, and never would have had Essure implanted had they been aware that the representations were false. We conclude that these allegations are sufficient to state a plausible negligent misrepresentation claim under the circumstances of this case.”
Essure is a nickel-titanium coil that contains polyethylene terephthalate (PET) fibers (a plastic not intended for permanent implantation into the human body. The device is inserted into a woman’s fallopian tubes where it causes an inflammatory response that “permanently” blocks the tubes, thus rendering the patient sterile.
Tens of thousands of women have complained of Essure causing severe injuries due to fragmentation and/or migration. Certain of the five Pennsylvania plaintiffs share these experiences, some have had to undergo hysterectomy (the only way to ensure complete removal) and one got pregnant, giving birth to an infant with birth defects.
Bayer Lawsuit Essure Side Effects
The five Pennsylvania plaintiffs claim that Bayer marketed Essure in such a way that the risks were downplayed. Specifically at issue is the claim on Essure’s website that the product is “Worry free: once your doctor confirms that your tubes are blocked, you never have to worry about unplanned pregnancy.”
Despite the fact that it did not get all of the plaintiff’s claims dismissed, Bayer considers Judge Padova’s ruling a victory and insists that the benefits of Essure outweigh the potential risks.
According to Bayer spokesperson Chris Loder, “Bayer is pleased with the court’s decision to dismiss most of the claims and narrow the cases significantly. As FDA itself has stated recently in numerous media articles, ‘Essure remains an appropriate option for the majority of women seeking a permanent form of birth control.’”
However, Attorney Eric Holland released this statement:
“A federal district court in Philadelphia validated the claims of several women injured by the Essure device and rejected Bayer’s preemption defense, a defense that Bayer claimed just last week would defeat our clients’ claims in St. Louis. This ruling sends a clear message to Bayer that it is unacceptable to break the law and try to get out of it on a legal technicality.”
Holland is one of the attorneys who continue to work tirelessly to advocate for justice on behalf of the many women grievously injured by the Essure device.
While the Pennsylvania ruling is not precedential and no multi-district litigation (MDL) has yet to be created, it is a step in the right direction. Until such time as this becomes a MDL, cases filed in other districts could be dealt with by judges who disagree with the Pennsylvania ruling.
