California judge boosts plaintiffs’ cases against Bayer’s Essure birth control device

Alameda County Superior Court in Oakland, CA.

A judge in Oakland, CA, ruled in favor of plaintiffs suing Bayer over its Essure birth control device by granting a motion that coordinates 55 cases currently pending in the state.

Under the pretrial motion approved Friday, attorneys for the plaintiffs in each case can now pool their resources in their claims the pharma giant failed to warn women about the dangers of the Essure birth control implant. The suits involve about 900 women.

Back in August, Alameda County Superior Court Judge Winifred Smith rejected arguments by Bayer attorneys that certain claims against Essure were preempted under federal law and barred by the statute of limitation. Smith is presiding over more than half the cases in California.

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The judge told the courtroom that combining the cases made sense as they all had common aspects and it would conserve court resources, The Recorder reported.

The suits claim Bayer’s Essure, an FDA-approved medical device that has been on the market since 2002, caused a number of problems and physical injuries in thousands of women who have had the device implanted.

Earlier this year, the FDA slapped a black box warning on the device, indicating extreme risks and possible serious injuries associated with its usage. The regulatory agency also told Bayer to conduct more postmarket studies of the device's safety.

The ruling, however, sets up a likely appeals battle by Bayer attorneys, as many of the cases filed in California involve plaintiffs outside the state. That fight could center on the extension of a ruling in August by the California Supreme Court that broadened the right to sue for those injured outside of California by companies doing business nationwide. That case involved Bristol-Myers Squibb’s Plavix blood thinner.

“Having these cases coordinated before a single judge will avoid inconsistent rulings and allow these women to prosecute their claims in a cohesive and unified manner,” Elizabeth Graham, the plaintiffs’ counsel who argued for the case coordination before Judge Smith, said in a statement.

That complaint was skewered by Bayer attorney Maja Eaton of Sidley Austin. "I think it's really a novel argument that coordination should be ordered simply because plaintiffs' attorneys are finding it difficult to communicate with each other," Eaton told The Recorder.