Essure Litigation Update

The Essure litigation has been haunted for some time now by the specter of “federal preemption”– a legal doctrine that up to now has more or less prevented women from taking legal action against Bayer. With a Pennsylvania federal judge recently coming down hard on the man representing five women allegedly injured by Essure, it could be easy for other victims to get discouraged, especially when one prominent news outlet characterized the judge’s comments as “ripping” the attorney.

So, why doesn’t it matter?

The Essure Hearing: What Happened?

On January 11^th, a hearing took place to give Bayer a chance to argue that the plaintiffs’ case should be dismissed – and the plaintiffs’ attorney a chance to argue against a dismissal. Clear enough.

But what may have not been so clear going in was the strong reaction the judge would have against the plaintiffs’ case and, consequently, the man arguing its merit.

Judge John Padova began the hearing by knocking down the plaintiffs’ assertion that the suits are not preempted by federal law. The plaintiffs argued that the device’s preliminary approval was conditional and that Bayer failed to uphold its end of the bargain. (Essure was allegedly manufactured at an unlicensed facility and Bayer reportedly failed to report certain side effects.) Padova stated that he was “unable to find any cases that support the plaintiffs’ self-invalidating argument.”

The judge also rejected the plaintiffs’ argument that federal preemption is only applicable when the FDA places specific requirements on a medical device, a theory that was reportedly backed by the U.S. Solicitor General. In response to this allegation – and the Solicitor General’s position on it – the judge stated: “that’s not the state of the law.”

Padova then proceeded to tear down each of the complaint’s causes of actions, including claims for negligent training of doctors, breach of express warranty and negligent reporting of side effects. With each claim, the judge asked the plaintiffs’ attorney to provide proof, to which he repeatedly stressed that he needed documents from the pharma giant to back his claims.

The judge did come down a bit on Bayer here, ordering that the two sides meet, get on the same page with regard to the documents and submit them jointly to the court.

What Should I Take Away from This?

This Was a Hearing, Not a Ruling

Women who were injured by Essure should keep in mind that this was hearing and not a ruling. Bayer and the plaintiffs’ attorneys were simply arguing the merits of the case and, while the judge indicated that some of the claims presented by the plaintiffs were on the weaker side, the case is far from over. The claims were torn down a bit, sure, but they were not dismissed by the judge, which is a subtle, but important difference.

“The judge’s ruling has not come down, and even if it had – whether it be a positive or negative one – it doesn’t have anything to do with your individual case,” said Ed Wallace, an attorney representing women injured by Essure. “The judge’s feelings about how the hearing went do not indicate that he’s ruled against the plaintiffs.”

This Was Not a Class Action – The Events of the Hearing Do Not Cascade Down to You

Keep in mind that Essure lawsuits are NOT class actions. They are being filed on an individual basis and will likely succeed or fail on individual basis. Simply put, the litigation revolving around Essure (including your particular lawsuit, if you’ve elected to file) does not stand or fall with this particular case.

In a class action, one (or a handful of people) represent thousands who suffered a similar injury. Say, for example, consumers bought a herbal supplement that said it could cure a common allergy but it couldn’t. Whether or not they’re going to get their money back for that supplement depends on the success of that one particular lawsuit.

Essure is different. It’s a mass tort, which means cases are being filed individually with each claimant’s choice of attorney. If you were injured by Essure and you haven’t filed a lawsuit, you are not covered by any pending litigation in the way you might be in a class action. (You can learn more about the difference between mass torts and class actions here.)

Furthermore, while overcoming the federal preemption issue in this case could set a legal precedent for the litigation as a whole, not overcoming it in this particular case doesn’t automatically doom the rest of the suits on file.

The Attorney You Choose Matters

Each attorney works differently, writes differently, argues differently. For the thousands injured by Essure, there are a handful of attorneys to choose from and, because you are awarded this choice, (unlike in a class action), it’s important to choose wisely.

It’s a Long Battle, But It’s Not Over Yet

Lawsuits are made up of dozens of hearings, hundreds of document filings and even more headaches. This was just one incident in the lengthy chain of events that make up lawsuits – both successful and unsuccessful ones.

“With lawsuits like these that present a number of legal challenges,” Wallace points out, “it’s important to take things in stride.”

So while the women injured by Essure still have an uphill legal battle ahead of them, it’s important to take the judge’s comments at these hearings with a little grain of salt and understand that this case – and the litigation as a whole – will continue to move forward.