Products Liability Law Daily High Court precedent underpins break-up of nationwide class action on pregnancy prevention device
Monday, July 17, 2017

High Court precedent underpins break-up of nationwide class action on pregnancy prevention device

By Georgia D. Koutouzos, J.D.

Relying on the U.S. Supreme Court’s recent ruling in Bristol-Myers Squibb Company v. Superior Court of California, a Missouri federal court has dismissed all claims in an attempted mass tort lawsuit against the manufacturer of the Essure® birth-control/sterilization device except those brought by actual citizens of that state and one Illinoisan whose implantation of the device had occurred in Missouri. There was no personal jurisdiction as to the non-Missouri citizens’ claims because there was no connection between the forum and the specific claims at issue under the above-mentioned precedent, the court held (Jordan v. Bayer Corp., July 14, 2017, Jackson, C.).

A putative class of women who sought damages for injuries they allegedly sustained after having been implanted with Essure—a permanent birth-control device in which coils are inserted into their fallopian tubes via a minimally invasive procedure—filed suit in Missouri state court against the device’s developer, Bayer Corporation, and various corporate subsidiaries. Among the causes of action asserted were negligence, negligent misrepresentation, strict liability for failure to warn and manufacturing defects, fraud/fraudulent concealment, breach of warranties, and violations of assorted state consumer protection laws. Of the 94 plaintiffs, seven were citizens of Missouri, one was an Illinois citizen who allegedly had the device implanted in Missouri, and the rest were citizens of 25 different states.

Bayer and its subsidiaries removed the case to federal court on the basis of diversity jurisdiction and federal-question jurisdiction, arguing that removal was proper despite the lack of complete diversity on the face of the complaint because the diversity-destroying plaintiffs had been misjoined, jurisdiction was proper under the Class Action Fairness Act, and the plaintiffs had pleaded violations of federal law, thus invoking federal-question jurisdiction.

The companies then moved to dismiss the case, asserting: (1) lack of personal jurisdiction over the out-of-state plaintiffs’ claims; (2) forum non conveniens with respect to the out-of-state plaintiffs’ claims; (3) express and implied preemption; (4) failure to state a claim on which relief could be granted; and (5) failure to plead the fraud claims with particularity. The plaintiffs countered that all of their claims had been properly joined and that subject-matter jurisdiction was lacking over the action in the absence of complete diversity of the parties. They also contested the companies’ assertion that federal-question jurisdiction existed in the case.

Personal jurisdiction. Prioritizing the personal jurisdiction inquiry because it was dispositive, the court observed that the question of general jurisdiction was easily addressed, as none of the defendants had been incorporated in Missouri or had their principal place of business in the state. Moreover, none of the defendants had substantial and extensive contacts such that they essentially were "at home" in Missouri. Accordingly, the companies were not subject to general jurisdiction in Missouri.

As for specific jurisdiction, the court held that the recent U.S. Supreme Court decision in Bristol-Myers Squibb Company v. Superior Court of California, 137 S. Ct. 1773 (2017), was dispositive of the specific personal jurisdiction issue in the case at bar. The High Court precedent held that a California federal court’s exercise of specific jurisdiction over claims by a group of non-California plaintiffs’ claims in a mass tort lawsuit against a pharmaceutical manufacturer violated the U.S. Constitution’s Due Process Clause [see Products Liability Daily’s June 19, 2017 analysis].

In the instant case, with one exception, the non-Missouri plaintiffs did not allege that they had acquired the Essure device from a Missouri source or that they had been injured or treated in Missouri; therefore, all the conduct giving rise to the nonresidents’ claims occurred elsewhere. Moreover, Bayer and its subsidiaries did not develop, manufacture, label, package, or create a marketing strategy for Essure in Missouri, and the general exercise of business activities in the state could not create an adequate link between the claims and the Missouri forum.

The sole exception was the claim of the Illinois plaintiff whose device had been implanted in Missouri, however, the court noted. With respect to the other non-Missouri plaintiffs, under Bristol-Myers, there was no personal jurisdiction as to their claims because there was no connection between the forum and the specific claims at issue. Consequently, Bayer’s motion to dismiss the lawsuit for lack of personal jurisdiction was granted as to the claims of all of the non-Missouri plaintiffs except for the above-mentioned Illinois woman whose device had been implanted in Missouri. As a result, the remaining seven plaintiffs (i.e., the Missouri citizens) were afforded additional time in which to amend their complaint setting forth their claims against the manufacturer and its subsidiaries.

The case is No. 4:17-CV-865 (CEJ).

Attorneys: Eric D. Holland (Holland Law Firm LLC) for Laveta Jordan. W. Jason Rankin (HeplerBroom Law Firm) for Bayer Corp., Bayer Healthcare LLC, Bayer Essure, Inc. f/k/a Conceptus, Inc. and Bayer HealthCare Pharmaceuticals, Inc.

Companies: Bayer Corp.; Bayer Healthcare LLC; Bayer Essure, Inc. f/k/a Conceptus, Inc.; Bayer HealthCare Pharmaceuticals, Inc.

MainStory: TopStory JurisdictionNews MedicalDevicesNews MissouriNews

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