Federal judge: 24 Essure personal injury cases not headed back to state court

By Nicholas Malfitano | Jun 5, 2019


Essure  

PHILADELPHIA – 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.

“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

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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Bayer Pharmaceuticals Philadelphia County Court of Common Pleas U.S. District Court for the Eastern District of Pennsylvania

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