Why Proper Service At Start Of State Court Filing Counts: “Bayer Essure Litigation Update”

Federal judge rules Essure personal injury cases not headed back to state court due to no initial service on Bayer 

By Mark A. York (June 24, 2019)

(MASS TORT NEXUS MEDIA) A federal judge in Pennsylvania has limited tort and breach of warranty claims in the Bayer Essure litigation in recent rulings, as well as ruling that no service at start of certain state court cases, keeps them in the federal docket.

U.S. District Court ED Pennsylvania Judge John R. Padova excerpt: 

“Plaintiffs have filed a motion to remand all 24 cases to the Court of Common Pleas of Philadelphia County. They argue that defendant Bayer HealthCare LLC, which is a named defendant in each complaint but is not one of the removing defendants, is a citizen of Pennsylvania and that the Forum Defendant Rule therefore bars removal. The removing defendants counter that the Forum Defendant Rule does not bar removal in these cases because the sole Pennsylvania defendant – Bayer HealthCare, LLC – was not ‘properly joined and served’ as it was not served with the complaint prior to removal,” Padova later adding “that the plaintiffs could have prevented the consequence of his ruling by sending the complaint to all of its named defendants, simultaneously with its filing.”

Bayer Essure USDC ED Pennsylvania Order Denying Motion to Remand May 24, 2019 (Judge Padova)

Additional recent rulings by the same judge, which are favorable to Bayer, state that express pre-emption applied to many of the plaintiffs’ claims as well as those that failed to be filed within the statute of limitations.

The judge ruled on:

  • Statute of limitations — whether time had run out on cases
  • Discovery rule — an exception to the statute of limitations for tort claims that applies in certain cases
  • Breach of warranty — refers to a company’s failure to live up to a claim made about a product
  • Fraudulent concealment — when a company hides a fact that it had a duty to disclose

In a recent 60-page opinion, U.S. District Judge John Padova of the Eastern District of Pennsylvania weighed the claims of a dozen women suing Bayer over the device and determined that many should be dismissed at the summary judgment phase because they were not brought within the allowable time frame.

Padova commented that the ruling is meant to give guidance to the parties litigating over 1,000 defective device lawsuits in state and federal courts.

NO REMAND TO PHILLY COURT

Twenty-four personal injury cases filed against Bayer Pharmaceuticals from women who used its Essure birth control device will not be returning to the Philadelphia County Court of Common Pleas, per a recent federal court ruling.

In an order dated May 24, U.S. District Court for the Eastern District of Pennsylvania Judge John R. Padova disagreed with the plaintiffs’ assertion that a state court had subject matter jurisdiction over the disputes.

Essure are metal coils placed in a woman’s fallopian tubes, which serve as a blockage device for the tubes to prevent pregnancy.

“Essure is a Class III medical device that received Conditional Premarket Approval from the Food and Drug Administration (FDA) before it was marketed to the public. The complainants allege that, instead of working as intended, the Essure device ‘migrates from the fallopian tubes, perforates organs, breaks into pieces and/or corrodes. Each plaintiff had Essure implanted and, as a result, suffered severe and permanent injuries,” Padova previously said.

The plaintiffs brought a number of claims sounding in negligence against Bayer – specifically, negligent training, negligent risk management, breach of express warranty, negligent misrepresentation and negligent failure to warn, alleging the company failed to warn doctors, patients or the FDA about the supposed dangers of the Essure device.

Defendants Bayer Corporation, Bayer U.S. LLC, Bayer Essure Inc., and Bayer HealthCare Pharmaceuticals Inc. removed the cases to federal court, asserting jurisdiction based on diversity of citizenship. On Jan. 4, defendants filed their notices of removal with the state court.

Bayer asserted the cases were properly heard in federal court due to state law claims turning on construction of federal law, but the plaintiffs countered that the Forum Defendant Rule prohibits Bayer from removing based on diversity of citizenship.

“Plaintiffs have filed a motion to remand all 24 cases to the Court of Common Pleas of Philadelphia County. They argue that defendant Bayer HealthCare LLC, which is a named defendant in each complaint but is not one of the removing defendants, is a citizen of Pennsylvania and that the Forum Defendant Rule therefore bars removal. The removing defendants counter that the Forum Defendant Rule does not bar removal in these cases because the sole Pennsylvania defendant – Bayer HealthCare, LLC – was not ‘properly joined and served’ as it was not served with the complaint prior to removal,” Padova stated.

See https://www.masstortnexus.com/Briefcases/46/ESSURE-(Bayer)-Philadelphia-Court-of-Common-Pleas for related docket information.

“Plaintiffs maintain, however, that Bayer HealthCare, LLC was ‘properly joined and served’ because plaintiffs served it with the writs of summons. Thus, the primary question raised by plaintiffs’ motion is whether service with a writ of summons suffices to satisfy the ‘properly joined and served’ condition of the Forum Defendant Rule.”

Padova said that the plaintiffs could have prevented the consequence of his ruling by sending the complaint to all of its named defendants, simultaneously with its filing.

“While the rule we apply today encourages some level of gamesmanship because it arguably encourages defendants who have been served with writs of summons to strategically remove before a forum defendant is properly served with the complaint, we are confident that the rule’s effect in this regard will be slight,” Padova said.

In citing precedent from the U.S. Court of Appeals for the Third Circuit which concluded that the practical outcome of that interpretation of the Forum Defendant Rule is not “so outlandish as to constitute an absurd or bizarre result” – and thus, concluded that “a writ of summons does not suffice to satisfy the ‘properly joined and served’ condition of the Forum Defendant Rule, and thus the Forum Defendant Rule does not prohibit removal of this action to this court where Bayer HealthCare, LLC was not properly served with the complaint prior to removal.”

“For the foregoing reasons, we deny plaintiffs’ motion to remand,” Padova said.

U.S. District Court for the Eastern District of Pennsylvania cases 2:14-cv-07315 et al

Philadelphia County Court of Common Pleas cases 180202502 et al

Essure USDC ED Pennsylvania Ruling Barring Tort and Warranty Claims March 27, 2019 (Padova, J)

______________________________________________________

Opinion in Essure USDC ED Pennsylvania Ruling Barring Tort and Warranty Claims March 27, 2019 (Padova, J)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HELEN McLAUGHLIN                            CIVIL ACTION NO. 14-7315

BAYER ESSURE, INC., et al.

And Related Actions

  1. 14-7316 (Ruble) NO. 16-3732 (Gross)
  2. 14-7318 (Stelzer) NO. 16-3733 (Johnson)
  3. 14-7317 (Strimel) NO. 16-3766 (Summerlin)
  4. 15-0384 (Walsh) NO. 16-3767 (Rodvill)
  5. 16-1458 (Dunstan) NO. 16-3769 (Quinton)
  6. 16-1645 (Clarke) NO. 16-4081 (Bradford)

: NO. 16-1921 (Souto)                 NO. 17-2915 (Wistrom)

: NO. 16-2166 (Bailey)                 NO. 17-3968 (Bobo)

: NO. 16-2154 (Campos)             NO. 17-4417 (Guess)

: NO. 16-2717 (Bolds)                  NO. 17-4936 (Gonzalez)

: NO. 16-3049 (Tulgetske)            NO. 18-37 (Jenson)

: NO. 16-3409 (Abeyta)                NO. 18-836 (Morua)

: NO. 16-3589 (Burgis)                 NO. 18-837 (Galan)

: NO. 16-3710 (Dong)                  NO. 18-838 (Alfaro)

: NO. 16-3730 (Mantor)               NO. 18-908 (Archer)

: NO. 16-3731 (Olague)

MEMORANDUM

Opinion in Essure USDC ED Pennsylvania Ruling Barring Tort and Warranty Claims March 27, 2019 (Padova, J) (link is above)

Padova, J. March 27, 2019

Essure Statute of Limitations

Defendants in Essure personal injury cases have argues that the statute of limitations period in all Essure cases should begin on November 18, 2016, the date the FDA approved a black box warning (its strongest warning level) for Essure. In reality, the dates triggering Essure limitation periods will vary, with the beginning of each plaintiff’s limitation period will depend on the plaintiff’s individual claims and state law applicable to the particular case.

Bayer Stops USA Sales

Bayer announced in June 2018 that it would voluntarily discontinue U.S. sales of Essure by the end of this year “for business reasons” but earlier this month affirmed the safety profile of the device. Last week, Bayer took Netflix to task over the accuracy of its medical device documentary “The Bleeding Edge.” The tide was turning for Bayer at that point, sales were already down 70% after the 2016 FDA warning and the public became aware of the risks of using Essure.

Bayer received FDA approval to sell Essure in 2002 and promoted it as a quick and easy permanent solution to unplanned pregnancies. Essure consists of two thin-as-spaghetti nickel-titanium coils inserted into the fallopian tubes, where they spur the growth of scar tissue that blocks sperm from fertilizing a woman’s eggs.

Because of the reported complaints, the FDA added its most serious warning to the device in 2016 and ordered the company to conduct a 2,000-patient study. FDA Commissioner Scott Gottlieb said Friday, the agency would work with Bayer to continue the study, but noted “Bayer will not be able to meet its expected enrollment numbers” for new patients. The study was designed to follow patients for three years to better assess complications.

Gottlieb said the FDA will continue to monitor adverse events reported to its database after Essure is removed from the market.  He stated “I also want to reassure women who’ve been using Essure successfully to prevent pregnancy that they can continue to do so,” and added “Those who think it’s causing problems, such as persistent pain, should consult with their doctors,” with Gottlieb further noting that device removal “has its own risks.”

Essure’s original label warned that the device’s nickel can result in allergic reactions. Its current labeling lists hives, rash, swelling and itching as possible reactions.

But many women have attributed other problems to the implant, including mood disorders, weight gain, hair loss and headaches. Those problems are listed in the current FDA labeling for the device, with the qualifier: “It is unknown if these symptoms are related to Essure or other causes.”

Informational material Bayer supplied to doctors and patients lists potential problems and states the devices are meant to be permanent. It also says removal may require complicated surgery, including a hysterectomy, that might not be covered by insurance.

Bayer is currently facing more than 30,000 additional lawsuits over various products across the United States, as referenced in the Bayer 2018 Annual Report, see link: https://www.bayer.com/en/bayer-annual-report-2018.pdfx.

 

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Note: (Excerpts within this article include Penn Record materials and other online media sources)

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