Fifth District affirms decisions allowing non-Illinois residents to litigate Essure claims in Madison County

By John Breslin | Jun 13, 2019

MOUNT VERNON -- In two separate decisions, the Fifth District Appellate Court has affirmed rulings out of the Madison County Circuit Court finding that non-Illinois residents are allowed to be involved in a mass action suit despite the landmark Bristol Myers Squibb decision limiting that right. 

Justice Thomas Welch delivered the Rule 23 decisions on May 29 with justices David Overstreet and James "Randy" Moore concurring. 

The lawsuits were filed in Madison County Circuit Court in 2016 alleging the permanently implanted contraceptive device Essure manufactured by Bayer Corporation was defective. 

The lawsuits accuse Bayer of "strict products liability, negligent failure to warn, negligence in training, negligence in manufacturing, negligence/negligence per se, negligent misrepresentation, and breach of express warranty …" 

Bayer announced last year it was no longer selling the device, which, according to The New York Times, is the subject of an estimated 16,000 lawsuits. Women have reported severe injuries including perforation of the uterus and the fallopian tubes. Additionally, several deaths have allegedly been linked to the device. 

Plaintiff Christy Rios' suit was filed July 25, 2016 by 95 women - 87 of whom were not Illinois residents. 

Plaintiff Nichole Hamby's suit was filed Nov. 28, 2016 by 86 women - 73 of whom were not Illinois residents. 

After the lawsuits were filed, the Supreme Court handed down the Bristol Myers Squibb (BMS) ruling on June 19, 2017, which barred nonresidents of California from joining a mass action because they did not suffer harm in the state and the alleged misconduct occurred elsewhere. 

In BMS, a group of plaintiffs sued Bristol-Myers Squibb Company alleging its pharmaceutical company’s drug Plavix caused injuries. Most of the plaintiffs were not California residents, but the group filed the suit in California State Court. BMS is incorporated in Delaware and headquartered in New York. It maintains substantial operations in New York and New Jersey. 

The Supreme Court held that the nonresident plaintiffs’ claims against a nonresident company were not connected to California. 

Further, the court held that BMS’s decision to contract with a California company to distribute the drug is insufficient to establish personal jurisdiction. 

Bayer cited the BMS decision when it moved to dismiss the claims of the plaintiffs who are not Illinois residents for lack of personal jurisdiction. 

Bayer alleged it is not based in Illinois and this is not its principal place of business. 

However, Madison County Circuit Judges William Mudge and Dennis Ruth separately ruled that there were key differences between the BMS case and those filed against Bayer. 

Mudge and Ruth agreed with Rios and Hamby that Bayer conducted clinical trials in Illinois that became the basis for Essure's regulatory approval, created its marketing strategy in Illinois and launched its Essure accreditation program in Illinois. Therefore, they held that Illinois is a correct forum for the mass actions. 

"Furthermore, were it not for Bayer's conduct in Illinois, the plaintiffs would not have had Essure implanted," the plaintiffs argued. 

The appellate court agreed.

"In order for a state court to exercise specific personal jurisdiction over an out-of-state defendant, the suit must arise out of, or relate to, defendant's contact with the forum," Welch wrote. 

The justice also drew a distinction between the present case and BMS, which "did not develop Plavix in California, did not create a marketing strategy for Plavix in California, and did not manufacture, label, package, or work on the regulatory approval of the product in California."

"As the defendants have purposefully availed themselves to Illinois, the plaintiffs have made a prima facie showing that exercising specific personal jurisdiction in this case is appropriate, the defendants have failed to rebut that showing, and litigating in Illinois would not be unreasonable," Welch wrote. 

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