District Judge Staci Yandle remanded a lawsuit alleging the Essure implant is defective after concluding that diversity jurisdiction and federal question jurisdiction are lacking.

The defendants described Essure as “an FDA-approved Class III medical device that serves as a form of permanent female birth control.” It was approved by the FDA through the “rigorous premarket approval process in 2002.”

Plaintiffs Christy Rios, Kelly Straley, Crystal McManamon, Michelle McKay, et al. filed the lawsuit on July 25 against Bayer Corp., Bayer Healthcare LLC, Bayer Essure Inc. and Bayer Healthcare Pharmaceuticals Inc.

In their complaint, the plaintiffs claim they have suffered injuries as a result of using Essure for contraception.

They claim the defendants defectively manufactured Essure, failed to disclose the risks and dangers of using it, failed to properly inform and train physicians of proper management of post-implant complications, failed to report complaints of its migration and expulsion by the body and failed to document corrective and preventative actions.

The defendants filed a notice of removal on Sept. 7 through attorney W. Jason Rankin of HeplerBroom in Edwardsville, removing the case to the District Court for the Southern District of Illinois.

They argue that the plaintiffs are from 27 different states and territories, and all but eight of them have no apparent connection to Illinois.

They also argue that the FDA has undergone numerous reviews and approvals, including one as recently as May 2016.

“After a public hearing in September 2015 and months of investigation, FDA recently reaffirmed that ‘FDA believes Essure remains an appropriate option for the majority of women seeking a permanent form of birth control,’” the notice states.

The defendants also filed a motion to dismiss and a motion to sever. They argue that the complaint should be severed because they are misjoined, and the non-Illinois plaintiffs’ claims should be dismissed for lack of personal jurisdiction. They add that the remaining plaintiffs’ claims are inadequate.

Yandle remanded the case to the Madison County Circuit Court on Oct. 12.

She explained that the defendants are citizens of Delaware, Indiana, New Jersey, Pennsylvania, Germany and the Netherlands, while some of the plaintiffs are also residents of Indiana, New Jersey and Pennsylvania.

“Thus, complete diversity does not exist on the face of the complaint,” she stated.

“It is clear from the face of the complaint that diversity jurisdiction is lacking. Thus the court need not determine the existence of personal jurisdiction,” she continued.

Yandle further held that “while Plaintiffs have alleged that Defendants’ conduct violates the FDCA and consideration of federal regulations may indeed be involved in the disposition of this action, those facts alone are insufficient to create federal question jurisdiction.”

Yandle concluded that the district court lacks subject matter jurisdiction over the case and is “obliged” to remand the case back to the circuit court.

The plaintiffs seek compensatory damages, declaration that the defendants are liable, disgorgement of profits, attorney fees, court costs, injunctive relief and any other relief the court deems just.

They are represented by Ann Callis of Goldenberg Heller & Antognoli in Edwardsville, attorneys with Fleming Nolen Jez in Houston and attorneys with Ennis & Ennis PA in Fort Lauderdale, Fla.

Madison County Circuit Court case number 16-L-1046

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Goldenberg Heller Antognoli & Rowland HeplerBroom LLC Madison County Circuit Court




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