The fate of a lawsuit from 92 women against multinational healthcare and pharmaceutical giant Bayer is in the hands of the Missouri Supreme Court.
In a hearing before the high bench this week, some of the judges seemed less than impressed with the plaintiffs claim that Bayer is subject to jurisdiction in the state.
Of the 92 plaintiffs in the Missouri case, 85 have no ties to the state. And the defendant, Bayer, is based in New Jersey.
Since a trial court rejected the company’s motion to dismiss the case last December, three major court decisions have significantly weakened the foundation of the plaintiff’s jurisdictional claims.
In late February of this year, the Missouri Supreme Court itself determined that plaintiffs cannot use the state’s courts to sue out-of-state companies which conduct significant business in Missouri for unrelated claims.
In that case, an Indiana resident was suing for personal injury that occurred in Indiana, but the litigation was taking place in Missouri under the premise that the defendant, Virginia based Norfolk Southern Railway, had significant operations in the Show-Me State.
There were also two U.S. Supreme Court cases that further weakened jurisdictional claims in the Missouri case.
In one of them in particular, the U.S. high bench held that courts in California don’t have jurisdiction to hear claims by out-of-state plaintiffs made against an out-of-state defendant. In that instance, more than 500 of 592 plaintiffs were from out of state.
In the case before the Missouri Supreme Court, the plaintiffs argue the state has jurisdiction over Bayer because the company conducted clinical trials in the state and develop its nationwide marketing campaign for the product in question in Missouri as well.
The plaintiffs claim the Missouri clinical trials relate directly to all of their claims, regardless of their state of residence, because without those clinical trials and nationwide marketing from Missouri, none of them would have used the product.
Arguing for the lower court judge who found in favor of the plaintiffs, attorney Jonathon Cohn said it’s obvious Bayer undertook major operations in Missouri.
“It’s what did Bayer do in the state of Missouri that then related to the causes of actions here,” said Cohn. “And here, we know that they did clinical trials that supported the approval of their PMA (Premarket Approval) process. And then they created this national advertising campaign that went out all over the United States and the world.”
Further, Cohn said plaintiffs’ claims of misrepresentation of the defective product have direct ties to Missouri. “It doesn’t matter where the plaintiffs heard these misrepresentations. The point is that they started in the state of Missouri. This is where they came from. And then they were projected outward.”
The Supreme Court judges peppered Cohn with questions challenging the line of thinking in his argument. At one point, Judge Laura Denvir Stith said he failed to link the out of state plaintiff’s claims to Missouri. “Council, I’m drawing the conclusion there’s no connection. So, if there is one, you should tell me what it is,” said Stith.
Representing Bayer, attorney Sean Jez said the product in question, “Essure”, could be linked to the state in which it was manufactured, or the plaintiff’s home state, but not Missouri.
“Essure was manufactured in California and abroad, but not in Missouri,” said Jez. “So, if you have a woman who obtains Essure in Oregon, she might be able to sue in Oregon where she lives, or California where Essure’s manufactured, but not in Missouri.”
He claimed the Plaintiff’s argument would allow for lawsuits to flood Missouri from anywhere in the world.
“They’re trying to make the city of St. Louis a nationwide, indeed a worldwide hub for mass tort litigation, in which any woman, anywhere in the world from Austria to Australia, can file their claim in Missouri, because supposedly Missouri is the basis of one of the many clinical trials that are conducted all around the world.”
Chief Justice Zel Fischer seemed to back up the case being made by Jez, referencing the recent court decisions favoring Bayer’s jurisdiction argument. “There are certain doors regarding personal jurisdiction that are being shut, that weren’t shut when these cases were filed,” said Fischer. “And you’re winning those arguments.”
In what might be a signal of admission that Bayer could be in line for a favorable decision from the Missouri court, Cohn, the attorney for the lower court judge that found in favor of the plaintiffs, is filing an amended brief to the judges.
Bayer has not been successful in staving off many of the previous lawsuits involving the product, as courts have rejected the company’s claim that it was immune to such litigation because Essure had been federally approved for distribution.
More than 3,700 women have filed lawsuits against Bayer in the U.S., alleging harm from the device. In its annual statement earlier this year, the company noted it incurred impairment losses of $413 million in connection with Essure.
The sterilization, or permanent birth control device, is implanted in women. Among the claims from plaintiffs are that it causes cramps, pelvic pain, ovarian and uterine cysts, pregnancy, miscarriage and loss of libido.