August 12, 2016 · FLEMING | NOLEN | JEZ, L.L.P.
For women suffering from the permanent birth control Essure®, there is new hope after a California State Court gave the green light for pending lawsuits against the Bayer Corporation. The decision was made after the Superior Court of California in Alameda County rejected numerous attempts by Bayer to dismiss the cases.
Bayer contends that since the device has received United States Food and Drug Administration (FDA) approval for its marketing and warning labelsit cannot be held accountable for any of the injuries sustained by the women implanted with the device. Bayer also challenged the jurisdiction of the plaintiffs in the case who were not residents of California arguing they should be required to bring their cases in their home states. Finally, Bayer argued that the claims being brought were barred by the statutes of limitations.
The court decided that despite the statute of limitation, the plaintiffs would have been unable to discover the damages due to the fact that Bayer allegedly concealed the relevant facts.
These rulings mean Bayer may be held financially liable for the damages caused by Essure®, but it also means that more people who hesitated to file a lawsuit can feel more confident in their attempts at a lawsuit.
Based on sales figures, there are roughly 900,000 women using Essure®. However, there are also thousands of reports regarding issues with the device. Some of these include the device moving, unintended pregnancy, and more.
The device is a tiny nickel-based coil that is inserted into each of the fallopian tubes. Scar tissue is intended to grow around these devices, blocking the tubes and preventing fertilization. Many women have reported pelvic pain, rashes, hair loss, migration of the device and perforation of the fallopian tubes. Unfortunately, the only way to remove the device from the body is through a hysterectomy.
In February of this year, the FDA recommended that Bayer place a black box warning on Essure®. This action comes after numerous requests for the device to be recalled completely. The allegations against Bayer in the California cases vary, but the main accusations are with regard to misrepresentation, fraud, and negligence.
The lawsuits claim that Bayer failed in monitoring and testing the Essure® device before putting it on the market. They are accused of failing to conduct regular analysis of the product’s risks, as well as failing to exercise reasonable care in manufacturing and quality control.