The Missouri Supreme Court is set to hear a case involving multinational healthcare and pharmaceutical giant Bayer. Litigation involving the company’s female sterilization device Essure has been widespread in the last year.
In April of 2016, a group of 92 plaintiffs filed a lawsuit in St. Louis against Bayer, alleging they suffered injuries after having the permanent birth control implanted.
The plaintiffs argued Bayer is subject to jurisdiction in Missouri because it does business, generates revenue and conducts marketing for Essure in the state.
Bayer moved to dismiss the lawsuit for two reasons. It says it’s not subject to jurisdiction in Missouri, noting only seven of the plaintiffs are from Missouri, while 85 of them have no connection to the state.
It also contends all the claims are preempted by federal law, meaning the company is immune from the lawsuits because a federal agency approved the devise. Bayer also moved to sever claims by individual non-Missouri plaintiffs and transfer those cases to appropriate venues.
In December of last year, the circuit court rejected Bayer’s motions. The company will argue for the high bench to overturn the lower court’s decision.
More than 3,700 women have filed lawsuits against Bayer in the U.S., alleging harm from the device. In its annual statement, the company noted it incurred impairment losses of $413 million in connection with Essure.
In September, Bayer announced it would end non-US sales of the device, but said its decision was not linked to any problem of safety or quality of the product. Company spokesperson Jennifer Brendel told Modern Healthcare in January that the company has sold 750,000 Essure units around the world, the majority of them in the U.S.
The U.S. Food and Drug Administration cleared Essure for the marketplace in 2002, but according to the site Drugwatch, has received more than 5,000 adverse event reports about the device since then.
The device consists of two metal coils implanted in the fallopian tubes that induce scarring to block the tubes and prevent fertilization.
Bayer’s claim that the lawsuit is not subject to jurisdiction in Missouri because most of the plaintiffs are from out of state is consistent with legislation Republicans introduced in the state legislature this year.
Bills in the House and Senate were, among other things, intended to reduce the number of cases filed in Missouri courts by plaintiffs with no connection to the state.
The measures were part of an overall focus by the GOP super majority to improve the state’s business climate by doing away with what it called “frivolous lawsuits”. They failed to advance through the General Assembly while other measures designed to limit liability lawsuits did become law.
For its part, Bayer claims three court decisions this year – two in the U.S. Supreme Court and one in the Missouri Supreme Court – back its contention that there’s no in state jurisdiction for the claims of the 85 non-Missouri plaintiffs.
The state high bench, in a case known as Norfolk Southern Railway Company versus Dolan, held Norfolk’s significant business in the state was insufficient to establish general personal jurisdiction over Norfolk.
The decision was seen as an instance in which Missouri Supreme Court continued the U.S. Supreme Court’s trend toward limiting jurisdiction over a non-resident defendant.