Eleven California-based Essure lawsuits were recently given the green light to move forward. This marks a significant development in Essure permanent female contraceptive litigation, which had previously been stalled due to a federal preemption law.
Complaints excluded from preemption
Judge Winifred Y. Smith of the Superior Court of California in Alameda County has decided to allow two common claims to proceed. The claims open an opportunity for thousands of other Essure lawsuits to potentially push through the medical device preemption law.
The cases allege that Essure caused severe injuries to patients’ reproductive organs resulting from Bayer’s negligent failure to warn. In the decision, Judge Smith found that any federal or state preemption laws didn’t bar claims that:
- Bayer breached the device’s warranty through marketing efforts that weren’t FDA-approved and which misrepresented Essure’s safety and effectiveness.
- Bayer failed to warn the FDA of the device’s full risks and side effects, which resulted in inaccurate product labeling.
A third common plaintiff claim that Bayer didn’t provide proper Essure implantation training to physicians may also survive preemption.
Plaintiffs appeal for multidistrict litigation
The medical device preemption law has been a major barrier for Essure litigation and especially for multidistrict litigation (MDL) consolidation attempts. Now that Judge Smith has allowed several complaints to proceed past the preemption barrier, motions for consolidating cases into an MDL may succeed based on the approved claims.
Prior to the California preemption decision, 30 other Essure cases containing more than 1,000 plaintiffs motioned for consolidation into an MDL on July 21st. The motion, which was presented to the U.S. Judicial Panel on Multidistrict Litigation, requests consolidation in the U.S. District Court of the Eastern District of Pennsylvania before Judge Gerald McHugh.
By consolidating the 30 cases in an MDL, the Essure litigation could save time and resources. In an MDL, the individual cases pool their claims and evidence for discovery until a list of common complaints is made. The judge, plaintiffs, and defendants then select certain cases from the MDL to try in bellwether trials where settlements can be drafted and attorneys can formulate their arguments based on juries’ reactions. At the end of the MDL, the individual cases are sent back to their courts for either settlement or trial.
Get legal help
Essure litigation is still a complex legal issue as Judge Smith’s ruling in California might not apply in other states. To understand what action and compensation are available for your Essure-related injuries, consult with an Essure attorney. An attorney will know about the laws that govern or restrict your case and can help you through the litigation process.