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Essure Victims Defeat Bayer's Attempt to Transfer Illinois Cases to Federal Court

Holly Kelly Ennis Oct. 13, 2016

Ennis & Ennis, P.A. and co-counsel recently filed a lawsuit in Madison County, Illinois for 95 women from across the country, injured by the controversial Essure birth control device. The women allege the Essure device caused them severe health problems including abdominal pain, severe cramping and bleeding, migraines, allergic reactions, device migrations, perforations and autoimmune issues. Bayer immediately removed (transferred) the lawsuit to the United States District Court for the Southern District of Illinois arguing the claims should be litigated in federal court asserting diversity jurisdiction and federal question jurisdiction.  Bayer believes it has a better chance of success by litigating the cases in federal as opposed to state court.  Plaintiffs strongly prefer to have the cases litigated in state court. 

Yesterday, in another victory for the plaintiffs, United States District Court Judge, Staci M. Yandle, remanded the case back to state court, where it was originally filed in Madison County. Judge Yandle soundly rejected both of Bayer’s arguments that the case belongs in federal court based on diversity and subject matter jurisdiction.  Regarding diversity, the Court noted that a federal court may have original jurisdiction in civil cases if there is complete diversity between the parties and the amount in controversy exceeds $75,000.  Complete diversity requires that none of the parties on either side of the litigation may be a citizen of the state of which a party on the other side is a citizen.  

Judge Yandle noted that the Bayer defendants were citizens of several different states including Delaware, Indiana, New Jersey and Pennsylvania and that some of the Plaintiffs were also citizens of each of these states, therefore defeating diversity. Bayer argued that out of state Plaintiffs should not be allowed to pursue their claims in Illinois and therefore diversity would exist. The court noted that on the face of the Complaint diversity jurisdiction did not exist so the Court did not need to determine the existence of personal jurisdiction. (Whether out-of-state Plaintiffs could maintain their cause of action in Illinois.)

Bayer also sought to invoke federal question jurisdiction of the Court by asserting the Plaintiffs’ claims were dependent on the resolution of a substantial and disputed federal question.  Federal question jurisdiction is present where the face of the complaint alleges a violation of federal law.  The Court essentially held that simply because federal issues (preemption and violations of certain federal statutes) may exist in a state cause of action, this does not automatically confer federal-question jurisdiction.  In the Madison County complaint, although Plaintiffs allege that Bayer’s conduct violates some federal law, including the Food, Drug and Cosmetics Act (FDCA), these facts alone are insufficient to create federal question jurisdiction, particularly as the FDCA provides no federal cause of action, nor remedy.  The Court noted that merely because a state court may have to reference federal regulation in determining the outcome of a claim, this is insufficient to create a substantial federal question.

Accordingly, Judge Yandle correctly ruled that the United States District Court, Southern District of Illinois lacked subject matter jurisdiction over the matter and appropriately remanded the case back to the state circuit court in Madison County, Illinois. This is another big win for the Plaintiffs in keeping the Essure cases in state court where they belong.

Anyone having questions concerning the pending lawsuit in Illinois or any other Essure-related question, including how to protect your legal rights, can contact Holly Ennis or visit us online at