Essure Victims Should Retain Attorneys To Protect Their Rights
Feb. 10, 2017
Over the past few months, many women may have seen television and Internet advertising regarding the Essure Sterilization device and its complications. Women should be considering retaining legal counsel at this time. Although the Essure device may enjoy certain protection from certain claims pursuant to a legal vehicle called preemption, this protection is not absolute and plaintiffs have been successfully moving forward with Essure cases across the country. 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 now requires a black box warning be placed on the product packaging and advises 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.
We have filed lawsuits in Missouri, California, Illinois, New Mexico and North Carolina alleging causes of action for negligence, strict products liability, breach of express warranty, breach of implied warranty and fraud. To date, these well-pled claims have been allowed to proceed in Missouri and California and we are awaiting rulings in the other states. 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.
Women should be 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. Most states have a two-year statute of limitations period, so time is 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. At least one judge has ruled that the statute of limitations period should begin to start running on September 24, 2015, the date of the FDA panel hearing on Essure. However, if you do not bring a claim within the required time frame, your case will be forever barred.
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. Please contact Holly Ennis at email@example.com should you have any additional questions or visit us online at www.EnnisLaw.com.