On January 19, 2017, plaintiffs who are residents of states around the country including Missouri, filed a joint complaint against Bayer AG, Bayer-Essure and other Bayer entities over its Essure Birth control implant in the Circuit Court for the City of St Louis, Bayer Essure Missouri Court Litigation, which was removed to Federal Court. The women claim Bayer’s device caused “serious and permanent injuries” and Bayer has been well aware of those risks for years,. The implants, considered “high-risk” at the time of their approval, were taken through the US Food & Drug Administration’s “Pre-Market Approval” process. In 2015 it was learned the FDA has received “nearly 10,000 formal complaints,” of debilitating side effects, that are “related to Essure,” and included an independent medical device expert who reviewed those 10,000 reports. The analysis ultimately turned up 303 reports of fetal death associated with the implants, far more than the 5 events cited in the FDA’s publicly-available documents on Essure. Congressman Brian Fitzpatrick (R-PA) is sponsoring a bill in the US congress that would see Essure recalled entirely from the market. For its part, the FDA recently announced that it would require a “black box” warning on Essure’s packaging, and has begun investigating allegations that clinical trial results were falsified to “silence” patients who experienced side effects after receiving the implants.
These claims are now meritless for the non-Missouri plaintiffs after Judge Carol Jackson, USDC ED Missouri, issued a ruling July 14, 2017 dismissing all claims by plaintiffs who are not residents of Missouri, citing the US Supreme Court in the June 19, 2017 Bristol-Myers v. Superior Court of California (Plavix) ruling where in an 8-1 opinion, the court ruled “California courts lack specific jurisdiction to entertain the nonresidents’ claims” which has subsequently been cited by defense counsel in attempts to get non-resident claims dismissed from numerous state and federal non-Multidistrict Litigation and consolidated court cases across the country, when plaintiffs do not reside in the case venues. Will filing a “Plavix” motion be the “go to” strategy for the short term by defense, to see how many claims they can get removed from pending actions and force parties to refile in courts where the plaintiffs reside. What impact will this have on “State Court” complex litigation dockets such as those in New Jersey and Pennsylvania where large numbers of non-resident plaintiffs have claims pending?
Bayer was able to move away from traditional “Pre-Market approval and other defenses thanks to the “Plavix ruling”, but there were numerous motions, briefings and arguments in the Missouri Essure case as Bayer had originally filed the Bayer Essure Motion to Dismiss Re: Lack of Personal Jurisdiction on March 9, 2017 prior to the Supreme Court Plavix ruling. The cases were originally filed January 19, 2017 in Circuit Court for the City of St, Louis as Laveta Jordan et al vs. Bayer Corp et al (original complaint) Case No. 1722-0000173; The same day Bayer filed the Motion to Dismiss (March 9, 2017), they also filed a Motion to Sever Non-Resident Missouri Plaintiffs, With plaintiffs filing a Motion and Memorandum to Remand back to state court on March 16, 2017. Parties continued aggressive briefing arguments until Plaintiffs filed the final Response on July 13, 2017, just one day before Judge Jackson ruled on all the pending motions.
Judge Jackson ruled as follows on the primary issues raised by Bayer Corp. in its motion.
As to General Jurisdiction:
The question of general jurisdiction is easily disposed of here, as none of the defendants is incorporated in Missouri or has its principal place of business in the state. Moreover, none of the defendants have such substantial and extensive contacts such that they are essentially “at home” in Missouri. Plaintiffs’ allegations that defendants conduct “substantial business activities” in Missouri are insufficient to show that defendants are “at home.”
As to Personal Jurisdiction:
Citing the Plavix Ruling:
“Bristol-Myers Squibb Company v. Superior Court of California, 137 S. Ct. 1773 (2017) is dispositive of the specific personal jurisdiction issue in this case. In Bristol-Myers, out-of-state plaintiffs joined California plaintiffs in state court. Together they alleged a host of state-law claims based on injuries purportedly caused by defendant Bristol-Myers (BMS) prescription drug Plavix. 137 S. Ct. 1773, 1777 (2017). Notably, BMS was not a citizen of California, and the California Supreme Court ultimately concluded that general jurisdiction was lacking. Id. at 1778. But, the California Supreme Court determined that California courts had specific jurisdiction over the claims of the nonresident plaintiffs. Id. The California Supreme Court reasoned that BMS’s extensive contacts with the state and the similarity to the claims of the California residents supported its conclusion, the US Supreme Court reversed”
The Court elaborated that when no such connection exists, “specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the state.” The exercise of forum activities unrelated to the cause of action – including the operation of research laboratories not connected to Plavix, employment of sales representatives, and the maintenance of a state-government advocacy office–did not affect the analysis. And “BMS did not develop, manufacture, label, package, or work on the regulatory approval or marketing strategy for Plavix in California”.
As to Bayer Contact with Missouri:
“Moreover, defendants Bayer, did not develop, manufacture, label, package, or create a marketing strategy for Essure in Missouri. And the general exercise of business activities in the state cannot create an adequate link between the claims and the Missouri forum”
As To Plaintiff Diversity:
Of the 94 plaintiffs, seven are citizens of Missouri. One plaintiff is an Illinois citizen who allegedly had the device implanted in Missouri. The remaining plaintiffs are citizens of 25 different states.
On March 9, 2017, defendants Bayer Corporation, Bayer Essure, Inc., Bayer HealthCare LLC, and Bayer HealthCare Pharmaceuticals, Inc., jointly removed the action to this Court on the basis of diversity jurisdiction, 28 U.S.C. § 1332, and federal question jurisdiction, 28 U.S.C. § 1332.1 Bayer Corporation is a citizen of New Jersey and Indiana; Bayer Healthcare LLC is a citizen of Delaware, Pennsylvania, New Jersey, Germany, and the Netherlands; Bayer Essure, Inc. and Bayer Healthcare Pharmaceuticals, Inc., are citizens of Delaware and New Jersey; and Bayer A.G. is a German corporation.2 Some of the plaintiffs are citizens of Delaware, Indiana, and Pennsylvania. Despite the lack of complete diversity on the face of the complaint, defendants argue that they properly removed this case. Specifically, they contend that removal was proper because the diversity-destroying plaintiffs were misjoined, jurisdiction lies under the Class Action Fairness Act, and plaintiffs plead violations of federal law, thus invoking federal question jurisdiction. Plaintiffs counter that all of the claims are properly joined, and the Court lacks subject-matter jurisdiction over this action in the absence of complete diversity of the parties.
Summary of Ruling On All Motions:
Before the Court are defendants’ motion to dismiss pursuant to Federal Rules of Civil Procedure 8, 9(b), 12(b)(2), and 12(b)(6), and defendants’ motion to sever. Also before the Court are plaintiffs’ motions to remand and stay this action. The issues are fully briefed
Bayer’s Motion to dismiss for Lack of Personal Jurisdiction was granted as to all non-Missouri plaintiffs except plaintiff, Jennifer Dischbein, an Illinois resident who had an Essure device implanted in Missouri. FURTHER ORDERED that remaining plaintiffs Laveta Jordan, Jennifer Baggett, Cheryl Denbow, Jennifer Dischbein, Tiffany Queen, Erica Ware, Michelle Weedman, and Lavena Wilkerson shall have until August 1, 2017, to file an amended complaint setting forth their claims against the defendants.
IT IS FURTHER ORDERED that defendants’ motion to dismiss the complaint for failure to state a claim or federal preemption is denied without prejudice. IT IS FURTHER ORDERED that defendants’ motion to sever is denied as moot. IT IS FURTHER ORDERED that plaintiffs’ motion to remand is denied. IT IS FURTHER ORDERED that plaintiffs’ motion to stay is denied as moot.
See the Mass Tort Nexus Bayer Essure Missouri Court Litigation briefcase link for additional case related information