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Bayer Can’t Keep Essure Suits Out of State Courts

July 25, 2018, 5:14 PM

Dozens of women suing Bayer over its Essure contraceptive device won their fight to keep their suits in state courts in Pennsylvania and Indiana.

Bayer failed to show the cases involved a question of federal law that would authorize federal courts to hear the suits, the U.S. District Court for the Eastern District of Pennsylvania and the U.S. District Court for the Southern District of Indiana said.

Essure consists of two coils that get placed in the fallopian tubes and cause the formation of scar tissue that creates a barrier to fertilization.

Bayer Healthcare Pharmaceuticals Inc. and related companies face some 16,000 suits. Women allege the implanted device caused harm including severe pain, allergic reactions to nickel in the coils, or perforation of other organs if it migrated out of the uterus. The majority of suits are pending in state court in California.

Defendants generally prefer to litigate in federal court to avoid inconsistent state court rulings, while plaintiffs tend to view state courts as better positioned to enforce state law protections.

The women’s claims include allegations include that Bayer negligently trained physicians and failed to report adverse side effects to the Food and Drug Administration.

They allege Bayer violated state law obligations that “parallel” duties under federal law.

Plaintiffs in another suit, also pending in federal court in Indiana, are seeking to have their claims sent back to state court, too.

Bayer said in a statement July 20 that it will stop selling Essure in the U.S. after Dec. 31 because a decline in sales made the business unsustainable. The company said it would continue to stand behind the product’s safety and efficacy.

Aylstock Witkin Kreis & Overholz PLLC and others represented the Pennsylvania plaintiffs. Eckert Seamans Cherin & Mellott LLC represented Bayer in the Pennsylvania suits.

Bubalo Good PLC and Cline Farrell Christie & Lee, PC represented the Indiana plaintiffs. Ice Miller LLP represented Bayer in both of the Indiana cases.

The Pennsylvania case is McLaughlin v. Bayer Essure, Inc., E.D. Pa., No. 14-7315, 7/23/18. The Indiana case is Leach v. Bayer Corp., 2018 BL 254831, S.D. Ind., No. 18-1185, 7/18/18.

To contact the reporter on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com