Holly Kelly Ennis
Essure Plaintiffs Win Right to Keep Essure Cases In Illinois
This week Bayer suffered a major blow when the Illinois Appellate Court for the Fifth District affirmed two earlier rulings of the Madison County Circuit Court, that Bayer has purposefully availed themselves to jurisdiction in Illinois and that litigating cases against Bayer in Illinois would not be unreasonable. These rulings are important wins for Essure plaintiffs as it provides another venue to seek restitution and justice against Bayer for the harms caused by the Essure device.
Bayer argued that of the 181 plainitffs filed in the two Essure cases against Bayer, 160 of the cases should have been dismissed as none of these 160 women were inplanted in Illinois, saw physicians in Illinois or had other significant contact in Illinois. However, the Appellate Court rightly opined that it is not the conduct of the plaintiff which is relevant concerning whether a defendent can be sued in a particuar state venue, but rather the actions of the defendent and it's connection to the state. Here, the Appellate Court noted various activities by Bayer which established a significant relationship with Illinois concerning the Essure product. For example the Court found that Bayer, among other activities, had:
- Engaged in extensive contacts with Illinois during the development of Essure, creating a marketing strategy for Essure, creating the mandatory physician training program for Essure, creating the Essure labeling and in obtaining FDA approval for Essure.
- Illinois was the site of one of the clinical trials used in gaining FDA approval for Essure, and thereafter continue to market the product with inadequate labeling.
- Illinois was the site of a consumer marketing campaign, including radio, print and direct mail advertising.
- Illinois was also the site of Bayer's pilot program for the Essure Accreditation Program which every physician who implants Essure msut go through.
The Appellate Court correctly held that in order for a state court to exercise specific personal jurisdiction over an out-of-state defendant, the suit must arise out of or relate to the defendant's conduct within the specific state. The primary focus should be on the conduct of the defendant and in this case, Bayer mistakenly argued and focused on the actions of the Plaintiffs, which is the incorrect analysis.
The Court also noted that the case would move forward against Bayer for the in-state plaintiffs, regardless. Therefore, to make the other plaintiffs litigate in different forums across the country in piecemeal litigation would result in addtional costs and use of judicial resources and would also run the real risks of conflicting rulings. Accordingly, the Court found Illinois would be an appropriate venue to litigate said cases.
To date, there are over 31,000 lawsuits which have been filed against Bayer regarding the damages caused by the Essure device. If you questions concerning the Essure Litigation contact attorney Holly Ennis at Holly@Ennislaw.com.