UPDATE: Five Essure Suits Survive Preemption [UPDATE]
by Tara Voss
Last Updated on October 27, 2022
August 25, 2020 – Bayer to Pay $1.6 Billion to Settle Essure Contraceptive Lawsuits
Bayer AG has agreed to pay $1.6 billion to settle lawsuits nationwide that claimed the company’s Essure birth control device caused serious health problems in women.
According to the German pharmaceutical giant, who in June inked a $10.5 billion settlement to end lawsuits across the U.S. claiming the Roundup weedkiller caused cancer, the $1.6 billion deal will cover 90 percent of the nearly 39,000 resolved and outstanding cases that alleged Essure caused internal perforation, abdominal pain, miscarriages, unintended pregnancies and menstrual complications, among other issues.
In a statement, Bayer said that although it “sympathizes with all women who have experienced adverse health conditions,” the company “continues to stand by the science supporting the safety and efficacy” of the contraceptive. The settlement comes with no admission of wrongdoing or liability on Bayer’s part.
Bayer added that discussions are ongoing with counsel for the remaining plaintiffs whose cases were not covered by the settlement.
On Tuesday, women who say they were injured by permanent birth control device Essure overcame perhaps one of the biggest hurdles they’ve faced in suing Bayer. A Pennsylvania federal judge found that the five plaintiffs in the consolidated litigation could move forward with at least some of their claims.
U.S. District Judge John Padova dismissed a number of the women’s original claims because of the preemption issue or because they weren’t pled sufficiently. These claims included negligent manufacture and fraudulent concealment, among others. The claims that were allowed to go through, however, include:
- Negligent misrepresentation
- Negligent failure to warn
- Negligent training
- Negligent risk management
The plaintiffs now have a chance to refile their complaints with their revised causes of action. For his part, Padova advised proceeding with care:
“We… caution Plaintiffs to consider carefully the legal and pleading principles we have set forth at length in this opinion and urge them to set forth with greater clarity the facts on which each individual Plaintiff’s claims are based, as well as the precise federal requirements that are allegedly violated by each individual instance of alleged misconduct (i.e., the federal requirements that Plaintiffs contend give rise to a parallel claim under state law).”
While Essure manufacturer Bayer is reportedly “pleased” with the court’s decision, the order can also be seen as a win for the thousands of women who were allegedly injured by Essure. Since these lawsuits were filed, their future has been unsure and clouded by the issue of “federal preemption” – a legal doctrine that had more or less shut the courtroom doors for those injured by the device. Many attorneys have been hesitant to take on these cases for fear that they would never pass the seemingly insurmountable preemption issue, and some women, too, were hesitant to join litigation that many saw as doomed to fail.
This decision, however, gives hope – and a next step – for the women implanted with the device. You can also view the Judge’s order here.
Special thanks to the ladies of Essure Problems for the tip and for their tireless work on behalf of victims.
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