The lawyers at KBA are helping the lawsuits against Bayer in the Essure litigation, which is an important lawsuit because of the serious injuries many women have suffered and the preemption issues it raises.

This medical device litigation was recently discussed in a recent Netflix documentary. Bayer withdrew the product from the U.S. market shortly before this documentary aired, but the litigation regarding Essure continues.

We wrote recently about the decision from federal court sending that had been filed there back to state court in Philadelphia. That helps keep the pressure on the Defendant as it fights these lawsuits in various venues, places where the cases are filed.

The parties are heavily involved in exchanging discovery. Discovery involves answering written questions and requests for information, exchanging documents, and taking depositions, which are out-of-court testimony given under oath to be used in court. As discovery continues, the parties are about to move into bellwether trial selection.

Bellwether trials are trials involving specific plaintiffs that are believed to be representative of the other plaintiffs in a consolidated litigation like the Essure cases in California, where over 10,000 cases are filed and being managed by a judge there, the Honorable Winifred Y. Smith, in JCCP 4887. After there are some bellwether trials in some litigations, the entire litigation resolves because the parties have enough insight regarding how a jury will likely respond to the evidence and how a jury values the injuries and other damages the plaintiff claims the product caused. So this move toward that phase of the litigation is great news for the thousands of injured women out there; a trial may be coming in the next year or two. The parties will work with the Court to set a schedule and we will provide an update when we have new information. In the meanwhile, there are some developments about which plaintiffs and attorneys should be aware.

Get your factsheets filed completely, accurately, and timely

In cases like the Essure litigation where many people claim to have been injured by the same or similar products, there are things called Plaintiff Profile Forms or Plaintiff Fact Sheets. Plaintiffs – the people suing the company – must complete these documents with their lawyers. The documents provide information about the individual’s use of the product, health history, injuries and damages the plaintiff claims the product caused.

There is a deadline to file this after someone files a lawsuit. It is important they are complete, accurate, and filed on time because there can be serious consequences, including dismissal – elimination of the case forever – if this does not happen and because the information is used to pick bellwether cases. In Essure, we are using Plaintiff Fact Sheets (“PFS”). So if you have an Essure case, be sure your attorney is working on your PFS.

Attorneys representing Essure clients should make sure they are receiving defense fact sheets and if not, request them timely.

Once a plaintiff files a PFS, the defendant is supposed to file a Defense Fact Sheet (“DFS”). Attorneys representing Essure clients should make sure they are receiving DFSs timely. If you are representing plaintiffs in the JCCP litigation (JCCP 4887) and you served your clients’ PFS, but you have not received a DFS that is now past due, please send defense counsel a letter laying out the timelines and citing the procedural orders. You can send a list of all your past-due cases to lead counsel and request a date certain for when the DFS will be sent. You should forward that correspondence to the Plaintiffs’ Steering Committee.

KBA Partner Justin Browne sits on the Plaintiffs’ Steering Committee and can help if need be.

1. Preemption is a legal doctrine that basically says, if the federal government is regulating certain things like medical devices, then states cannot pass laws that conflict with that federal system. What it means to people injured by products is that they often cannot sue in court. Congress has effectively taken aware their right to sue.
2. JJCP = Judicial Counsel of California Civil Case Coordination Proceeding, which is basically a mechanism in California