E-Sisters Should Retain Attorneys To Protect Their Rights
May 20, 2016
05/20/2016 - Over the past few weeks, many women may have seen television and Internet advertising regarding the Essure Sterilization device and its complications. Many women may be considering retaining legal counsel at this time. Although the Essure device enjoys certain protection from civil liability pursuant to a legal vehicle called preemption, this protection is not absolute. Significant progress has been made on different fronts to circumvent preemption, have the Essure device removed from the market and to restore victims’ rights to sue. The FDA will now require a black box warning be placed on the product packaging and require doctors to complete a patient checklist indicating they have discussed the various risks associated with the device. While these actions remain grossly insufficient to address the Essure problems, they are small steps in the right direction.
Additionally, lawsuits have been filed across the country and early indications are that these claims will be allowed to proceed with at least some of the causes of action. Recently, Pennsylvania federal judge John Padova ruled that five Pennsylvania Essure plaintiffs could proceed with their lawsuit. Although Judge Padova dismissed several claims based on preemption theories, he ruled the PMA ostensibly protecting Bayer from litigation does not preclude plaintiffs from pursuing certain claims against Bayer. This ruling potentially opens the door for thousands of lawsuits to be filed nationwide by women significantly harmed by the device.
Judge Padova allowed causes of action for negligent misrepresentation and negligent failure to warn to proceed and accordingly highly important and informative discovery should be allowed for plaintiffs to obtain necessary documents and data necessary to prove their case. Additionally lawsuits have been filed in both Missouri and California alleging causes of action for strict products liability, negligent failure to warn, negligent training of physicians, negligent misrepresentation and breach of express warranty. It is anticipated that these well pled claims will allowed to proceed in court. If so, women should be moving forward with retaining an attorney to protect their legal rights, and most importantly, not to allow their statute of limitations or time frame in which to file a claim, to expire.
Many women are concerned when their statute of limitations or time frame in which to bring a claim will run. Each state has a different statute of limitations period, typically between 1-5 years. Many states have either one or two-year statute of limitations periods, so time may be of the essence. Some states also have a discovery statute that typically provides that the time period does not begin to run until the plaintiff knew or reasonably should have known of the injury and that it was wrongfully caused. Many women did not immediately correlate their symptoms to Essure and most were vigorously advised by their physicians that their symptoms were in no way connected to the device. In many cases, it will be a fact question to be determined by a jury whether a claimant’s statute of limitations period expired prior to bringing a claim.
Many women have questioned whether their Essure device has to be removed in order to file a claim. Any women who has the device and has suffered an injury may file a claim, regardless of whether she has had the device removed. Different factors will go into the determination of the amount of compensation a women may be entitled to, however, removal is not a prerequisite to filing a claim. There are many types of injuries related to the Essure device and they may compensated accordingly. The Essure lawsuits will not be a class action suit, but each woman will have her own individual claim.
Hiring an attorney is not difficult or expensive. Attorneys handling personal injury litigation work on a contingency fee agreement. This means the attorney receives a percentage of the recovery if there is a recovery in the litigation. If there is no recovery by the client, then there are no fees or costs charged to the client. Consultations to determine whether a client has a case are free and confidential. Women who have been implanted with the Essure device may be entitled to compensation. If you would like a free consultation on your Essure Sterilization Device claim, contact Holly Ennis at Ennis & Ennis, P.A., by going to www.ennislaw.com and completing an online case evaluation form or emailing directly to email@example.com