Essure Mass Tort Formed In California State Court

A California judge has ordered that all Essure birth control lawsuits filed throughout the state court system be consolidated for pretrial proceedings, as part of a “mass tort”. 

Essure is a medical device designed to provide permanent birth control through the placement of coils that cause scar tissue to form and block a woman’s tubes.

While it has been marketed by Bayer as a safe and effective means of preventing pregnancy, thousands of women have reported severe and painful Essure complications, where the coils migrated, perforated the uterus, caused severe allergic reactions, infections, abdominal pain and other problems.

A quickly growing number of product liability lawsuits have been filed in courts nationwide, with many pending in California state court. Each of the claims raise similar questions of fact and law, involving allegations that Bayer sold an unreasonably dangerous device and failed to adequately report problems with the device to the FDA, doctors or consumers.

As Essure injury lawyers continue to review cases, it is expected that the size of the litigation will continue to grow over the coming months and years.

On September 30, Judge Winifred Y. Smith granted a petition for the creation of an Essure mass tort for the cases pending in California. The request was made by numerous plaintiffs, with Bayer opposing the centralized discovery and pretrial proceedings.

Judge Smith’s order (PDF) calls for all the cases to be consolidated in the Superior Court of the State of California in Alameda County. No coordinating judge has yet been assigned, but Judge Smith said that the first case management conference should be scheduled for December 16, 2016, if a judge is appointed by that time.

A mass tort is similar to a federal multidistrict litigation (MDL), which are commonly established when there are a large number of complex product liability claims filed by individuals who suffered the same or similar injuries from one medical device or medication.

While the cases are managed similar to an Essure class action during discovery and pretrial proceedings, each lawsuit does remain an individual claim. If the cases are not resolved through an Essure settlement or dismissal, each case may ultimately be scheduled for an individual trial date.

In July, a petition was filed at the federal level for the creation of an Essure MDL. However, that petition was withdrawn in August, and cases filed at the federal level are currently proceeding on a case-by-case basis.

Following a 2015 FDA advisory panel meeting to review the safety of Essure, the agency announced in late February 2016 that much stronger Essure warnings will be required to make sure doctors and women are informed of the potential risks. Bayer has also been ordered to conduct additional studies to better understand the safety of the implant, raising questions about why the manufacturer failed to take these steps years ago after receiving complaints.

An estimated 750,000 women worldwide have undergone Essure sterilization procedures since the device was introduced in 2002. Bayer purchased the Essure product from the original developer, Conceptus, for about $1.1 billion in 2013.