Ruth denies motion to stay proceedings in suit over Essure implant

By Heather Isringhausen Gvillo | Mar 14, 2017

In a lawsuit alleging the Essure implant is defective, Madison County Circuit Judge Dennis Ruth denied a motion to stay proceedings pending the Fifth District Appellate Court’s jurisdiction decision in a Madison County asbestos suit.

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.

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.”

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.

On Jan. 27, the defendants filed a motion for a stay of proceedings in light of the U.S. Supreme Court’s recent grant of certiorari in Bristol-Myers Squibb Co. v Superior Court of California, San Francisco County and the Fifth District Appellate Court’s forthcoming decision in Jeffs v Ford Motor Co.

The defendants argued that both appeals “address Due Process limitations on personal jurisdiction when there is an insufficient connection between a plaintiff’s claims and a defendant’s alleged contacts with the forum state.”

They urged the court to wait for appellate guidance “so neither the Court nor the parties needlessly waste resources litigating the claims of plaintiffs who belong in other courts.”

The defendants explained that in Jeffs, Madison County Associate Judge Stephen Stobbs denied Ford’s motion to dismiss for lack of personal jurisdiction, concluding that Ford consented to jurisdiction in Illinois by registering to do business in Illinois and by stating in a brief that it “conducts substantial business in Illinois.”

“Plaintiff’s here raise nearly identical arguments in their opposition to Bayer’s motion to dismiss,” the motion stated.

The Jeffs decision is expected at any time.

They added that on Jan. 19, the Supreme Court granted the petition for a writ of certiorari in Bristol-Meyers Squibb to review a California court’s “expansive” view of specific personal jurisdiction.

The court is expected to hand down a decision in June, answering the question, “Whether [specific jurisdiction exists] when there is no causal link between the defendant’s forum contacts and the plaintiff’s claims – that is, where the plaintiff’s claims would be exactly the same even if the defendant had no forum contacts.”

The plaintiffs filed a response in opposition to the motion to stay on Feb. 17 through attorney Ann Callis of Goldenberg Heller & Antognoli in Edwardsville.

They argued that jurisdiction had already been established due to Bayer’s contacts with Illinois and its consent to Madison County’s jurisdiction.

“This Court should see Bayer’s motion for what it is – another improper attempt to delay,” the response stated.

The plaintiffs argued that because the defendants admitted that the circuit court has jurisdiction over some claims, it has admitted that jurisdiction is proper over all claims.

They also argued that Jeffs is irrelevant.

Jeffs involves one plaintiff whose injuries arose completely outside of Illinois. This case involves many Plaintiffs, eight of whom were injured in Illinois by Bayer’s conduct and product in Illinois. Therefore, no matter what the ruling is in Jeffs, it will have no impact on Plaintiffs’ claims in this case,” the response stated.

The plaintiffs further argued that Bristol-Myers involves California law, which does not recognize consent jurisdiction, while Illinois has recognized consent jurisdiction for over 130 years.

They later added that Bayer sold Essure to Illinois residents and maintained business relationships with the doctors that it contracted with to run its clinical trials in Chicago.

The defendants filed a reply in support of their motion for a stay of proceedings on Feb. 23 through attorney W. Jason Rankin of HeplerBroom in Edwardsville and Rebecca Wood of Sidley Austin LLP in Washington, D.C.

They argued that the plaintiffs mistakenly allege that the appellate decisions will not matter to the personal jurisdiction analysis here. The defendants claimed the cases address questions of personal jurisdiction and federal Due Process that were central to its motion to dismiss in this case, which has not been ruled upon.

They also argued that personal jurisdiction has not already been established.

“To the contrary, Bayer has vehemently contended that there is no personal jurisdiction over Defendants with respect to the non-Illinois plaintiffs’ claims,” the reply stated.

The defendants further argued that jurisdiction is case-specific and much be determined for each plaintiff.

“Plaintiffs’ claim that Bayer’s allegedly in-state activities in 2002 suffice to establish specific jurisdiction over all non-Illinois Plaintiffs is in error because Plaintiffs allege no facts establishing a connection between those in-state activities and the non-Illinois Plaintiffs’ injuries,” the reply stated.

Ruth denied the motion to stay on Feb. 24.

Madison County Circuit Court case number 16-L-1046

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Goldenberg Heller Antognoli & Rowland HeplerBroom Madison County Circuit Court Sidley Austin LLP

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