Madison - St. Clair Record

Tuesday, November 19, 2019

Illinois Supreme Court will allow Bayer to appeal personal jurisdiction rulings in Madison County Essure cases

State Court

By Ann Maher | Sep 30, 2019

Moore and Overstreet

The Illinois Supreme Court will allow appeals from Bayer Corp., which is challenging mass action suits involving more than 150 non-Illinoisans over its contraceptive device Essure.

Last week, the high court granted the company's petitions for leave to appeal two separate decisions out of the Fifth District Appellate Court, which rejected Bayer's argument that non-Illinoisans are precluded from suing in Madison County based on the landmark U.S. Supreme Court ruling in Bristol Myers Squibb in 2017.

In BMS, a group of plaintiffs, mostly non-Californians, sued Bristol-Myers Squibb in a California state court alleging its pharmaceutical company’s drug Plavix caused injuries. The company is incorporated in Delaware and headquartered in New York, and 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. The court further held that BMS’s decision to contract with a California company to distribute the drug was insufficient to establish personal jurisdiction.

The Madison County Essure lawsuits were filed in 2016 by attorney Ann Callis of the Goldenberg firm in Edwardsville, and others, alleging the permanently implanted contraceptive devices were defective.

In one, lead plaintiff Nichole Hamby sued on behalf of 86 women - 73 of whom were not Illinois residents. In the other, lead plaintiff Christy Rios sued on behalf of 95 women - 87 of whom were not Illinois residents.

When it moved to dismiss the claims of the non-Illinoisans for lack of personal jurisdiction, Bayer cited the BMS decision. The company argued that it is not based in Illinois and Illinois is not its principal place of business.

Both Circuit Judge William Mudge, who presides over Hamby's case, and Circuit Judge Dennis Ruth, who presides over Rios's case, denied Bayer's motions to dismiss in orders entered April 18, 2018.

The judges held that there were key differences between the BMS case and the Essure cases filed against Bayer. They 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 was a correct forum for the mass actions.

A Fifth District appellate panel including Justices Thomas Welch, David Overstreet and James Moore affirmed Mudge and Ruth on May 29.

"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.

Welch drew a distinction between the present cases 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.

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.

The Illinois Supreme Court consolidated the Hamby and Rios cases for appeal.

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