In accordance with a ruling made on September 30, 2016, more than 50 Essure lawsuits have been coordinated in a California state court in Oakland. The decision is being hailed as a major victory for hundreds of women currently pursuing lawsuits against Essure’s manufacturer, Bayer. As a group, the state-filed lawsuits will now continue through pre-trial proceedings, including the evidence-gathering stage of discovery.
Essure Lawsuits Coordinated In California State Court
Together, the 55 newly-coordinated cases represent over 900 women, all of whom say that Bayer’s controversial birth control implant Essure causes debilitating side effects. Since Essure’s approval, the US Food & Drug Administration has received thousands of side effect reports linked to the device, with chronic pelvic pain and abnormal menstruation topping the list.
The order for coordination was handed down by Judge Winifred Y. Smith, Assistant Presiding Judge for the Superior Court of Alameda County. In the coming days, at least 55 Essure lawsuits will be transferred to Alamada County’s Superior Court and come under the authority of Judge Smith.
Over 1,000 women have now filed Essure lawsuits nationwide, accusing Bayer of concealing evidence on the implant’s potential risks from the US Food & Drug Adminstration. Beyond California, several groups of Essure cases have been coordinated in other courts. At least 18 federal lawsuits are currently consolidated in the US District Court for the Eastern District of Pennsylvania. In July, a second group of plaintiffs moved to have their own cases coordinated in the Pennsylvania federal court, but soon withdrew their request.
Judicial Council Coordination Proceedings
According to California’s Judicial Branch, civil case coordination “allows two or more civil actions (cases) that share common questions of fact or law and that are pending in different counties to be joined in one court.” In California’s state courts, this mechanism is known as Judicial Council Coordination Proceedings, or JCCP.
JCCP is not the same as class action. After coordination, each Essure lawsuit will remain an individual legal action and no plaintiff will be required to forfeit any of her legal rights. In class actions, on the other hand, “representative” plaintiffs file suit on behalf of a larger group of individuals. While these additional class members can share in any fruits of litigation, the most crucial decisions fall solely on the shoulders of representative plaintiffs.
Most experienced attorneys believe that class action is an inappropriate technique for litigating Essure claims, since each woman alleges unique and severe side effects. Judicial Council Coordination Proceedings, however, will likely offer the women in California many of class action’s benefits, with few of its drawbacks. Gathering together in a single court, the claims of multiple plaintiffs often gain in efficiency, as attorneys can pool their resources more effectively. Coordination also eliminates the potential for inconsistent rulings, since a single judge will consider motions and make rulings that affect each individual case equally.
“A Very Favorable Development”
“This is a very favorable development for these injured women,” says Elizabeth Graham, an attorney at Grant & Eisenhofer who is among a group of lawyers representing the plaintiffs. “I’m hoping that it’ll be a quicker, more efficient, cohesive resolution to all women’s cases in California,” she told Modern Healthcare.
Graham, a lead sponsor at BirthControlProblems.com, worked alongside Fidelma Fitzpatrick, an attorney at Motley Rice, to argue in favor of coordination before Judge Smith in the September 30th hearing.
Essure’s California Roots
Essure was largely developed by a Bay Area medical device manufacturer, Conceptus Inc. Bayer purchased the company in 2013, hoping to expand its portfolio of contraceptive options with a permanent implant. In oral arguments, Bayer vigorously opposed the motion to coordination, but was ultimately unsuccessful in changing Judge Smith’s mind.
The 55 lawsuits will now continue through pre-trial proceedings, as a group, under the guidance of Judge Smith, who has made several past decisions in favor of plaintiffs. In August 2016, the Judge rejected Bayer’s arguments that several claims against the company were preempted under federal law.
While Judge Smith’s decision only affects the 55 coordination lawsuits directly, many legal observers believe the ruling may have widespread ramifications. Thousands of other women could be eligible file suit against Bayer, and recent decisions like the one in California are likely to pave the way.