Essure Claimants Obtain Major Victory In Illinois
May 2, 2018
In two Essure cases pending in circuit court in Madison County, Illinois, Bayer filed nearly identical Motions to Dismiss Plaintiffs' complaints for lack of personal jurisdication. These complaints, filed on behalf of nearly 200 Essure claimants, were filed by plaintiffs who primarily reside outside of Illinois. Between the two complaints, approximately 20 women reside in Illinois and the other 160 women were from at least 22 other states. Bayer claimed the Illinois courts lacked personal jurisdiction to hear the claims of all non-resident plaintiffs claiming they had insufficient contacts with Illinois as they were not implanted with the Essure device in Illinois, their devices were not manufactured in Illinois, they did not have an Illinois physician implant the device nor were they treated for any Essure-related injury in Illinois and accordingly can not file suit against Bayer in Illinois.
Plaintiffs, however argued that significant contacts with Bayer arose in Illinois, subjecting the company to being sued in Illinois including that: Bayer facilitated clinical trials in Illinois using Illinois physicians which became the the framework for having the device approved by the FDA; that Bayer created a nationwide marketing campaign and strategy in Illinois and that Bayer launched its Essure Accreditation Program in Chicago, which sets forth the phsyician training program to be used nationally. These factors create the necessary relationships to subject Bayer to being sued in Illinois.
The Courts agreed and denied Bayer's Motions to Dismiss, finding several factors created the minimum contacts necessary for a non-resident defendant to be subject to suit. The Courts noted that Bayer must have "purposeful activities" in Illinois and that Plaintiffs' claims arise from those contacts with Illinois. The Courts reasoned Bayer had purposeful activities in Illinois for several reasons. First, Bayer ran clinincal trials relating to Essure and it conducted post approval FDA mandated studies to assess the long term safety and effectiveness of Essure in Illinois. This testing influenced the labeling and FDA approval of the device which thereby affected women nation-wide who were then implanted with the device. Further, in those clinical trials conducted in Illinois, Bayer contracted with Illinois physicians to conduct the trials, who had input and their knowledge was funneled to doctors across the United States.
Further, the Courts noted that the Essure Accreditation Program, the physician training program was created in Illinois and every single implanting physician was required to undergo this training, thus tying plaintiffs from around the country to the program and Illinois. The Courts also noted that the labeling for Essure was a product of the numerous and continuing studies in Illinois that influenced the use and warnings for the device, which was ultimately approved by the FDA and made part of Essure packaging.
Finally, the Courts correctly ruled that the fact Bayer created its marketing strategy for Essure, which rolled out consumer campaigns across the country, modeled from the Illinois campaigns, was another solid basis to allow Bayer to be sued in Illinois. This campaign, according to Plaintiffs, created false and misleading marketing nationwide, which led many of the plaintiffs to being implanted with the device. Without this marketing campaign, Plaintiffs would not have seen nor relied on the misrepresentations and purchased the devices.
Based on the above factors, the Courts denied Bayer's Motions to Dismiss for personal jurisdiction and the cases for nearly 200 women will move forward in Illinois. If you or a loved one have been injured by the Essure device, contact attorney Holly Ennis at Holly@Ennislaw.com or visit us online at www.EnnisLaw.com for a free consultation.