Bayer Beats Claims by Out-of-State Essure Users in Illinois

Bayer Corp. can’t be sued in Illinois by out-of-state plaintiffs over alleged dangerous defects in its permanent birth control device Essure because of the limited activities the company conducted in the state and the strictures of a U.S. Supreme Court ruling, the Illinois top court said Thursday.

In a pair of lawsuits, 180 plaintiffs from Illinois and dozens of other states alleged Bayer marketed Essure as being safer and more effective than other forms of birth control. In reality Essure caused life-altering complications such as debilitating pain, heavy bleeding that necessitated medication, and autoimmune disorders, the plaintiffs said.

Their claims include negligence, product liability, breach of warranty, and fraud.

Illinois courts can’t exercise specific personal jurisdiction over out-of-state defendants like Bayer for personal injuries that nonresident plaintiffs allegedly suffered outside of Illinois from a device that wasn’t manufactured in the state, the Illinois Supreme Court said.

The plaintiffs argued that Bayer conducted clinical trials in Illinois, used the state as a testing ground for its physician training program, and orchestrated a marketing campaign in Illinois that ultimately spread misinformation about Essure nationwide.

But the U.S. Supreme Court’s 2017 ruling in Bristol Myers Squibb Co. v. Superior Court of California forecloses the plaintiff’s arguments, holding that under the 14th Amendment “a nonresident defendant’s general connections with a forum do not provide a basis for state courts to assert specific personal jurisdiction,” the court said.

The claims of the non-Illinois plaintiffs here don’t “arise out of, or relate to” Bayer’s Illinois activities “in any meaningful sense of the terms,” the court said. Moreover, Bayer claims, and the plaintiffs haven’t disputed, “that many nonresident plaintiffs initiated duplicate actions in California, which demonstrates that the interests of judicial economy are not furthered by permitting their claims to proceed in Illinois,” the court said.

The opinion was written by Justice Mary Jane Theis.

Justice Thomas L. Kilbride, joined by Judge Justice P. Scott Neville Jr., wrote a separate concurrence. While this is the correct result under Bristol Myers, Kilbride said, he agreed with Justice Sonia Sotomayor’s dissent in that case.

Sotomayor argued the majority’s rule “will make it difficult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone,” and that “there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike.”

“This case perfectly illustrates Justice Sotomayor’s concerns,” Kilbride said.

The cases are Rios v. Bayer Corp., Ill., No. 125020, 6/4/20 and Hamby v. Bayer Corp., Ill., No. 125021, 6/4/20.