On May 20, Big Pharma/Life Sciences giant Bayer filed a motion in federal court in the Eastern District of Missouri. Its goal? Removal of a pending suit filed in state court in St. Louis over its “permanent” birth control device, Essure. Six days later, Judge Carol E. Jackson of the Eastern District of Missouri handed down her decision on the removal request. Bayer lost bid to remove Essure suit to federal court. The judge, in effect, said that the suit was perfectly situated in the state court.
On May 20, Big Pharma/Life Sciences giant Bayer filed a motion in federal court in the Eastern District of Missouri. Its goal? Removal of a pending suit filed in state court in St. Louis over its “permanent” birth control device, Essure. Six days later, Judge Carol E. Jackson of the Eastern District of Missouri handed down her decision on the removal request. Bayer lost bid to remove Essure suit to federal court. The judge, in effect, said that the suit was perfectly situated in the state court.
A little Civil Procedure 101 may be in order for those less familiar with legalese and the strategic maneuvering involved in injury suits, particularly when the defendant is a large corporation.
First of all, what is removal? It is a procedure by which a case filed in a state court is removed from that court’s jurisdiction and transferred to a federal court that has jurisdiction over the parties. There are advantages to removal, particularly if you’re the defendant. In this particular case, the only advantage to the plaintiffs (92 Essure-injured women) would be that removal may have resulted in the consolidation of the (many) suits to come into what is known as a multi-district litigation (MDL).
I know, in answering the removal question I introduced two new issues: jurisdiction and MDLs. Let’s start with the latter. MDL’s are similar to class actions but differ in one important aspect. In class action suits, the final verdict or settlement is binding on all parties. However, in MDLs, while the cases are grouped together, they are resolved individually. The advantage to MDLs is in putting cases with common factual or legal issues in one group so that evidence discovery, pre-trial hearings, trial scheduling and settlement conferences – issues common to the grouped cases – can be decided at one time.
The advantage to the plaintiffs in an MDL is that the process tends to be more efficient and the plaintiffs’ attorneys are better able to coordinate their efforts on behalf of their clients. Plus, one judge oversees these early phases and so becomes expert in the issue at hand. This judge has the power to grant summary judgment (when it’s obvious that the opposing party can’t win based on the governing law and the facts) and to dismiss the cases outright. Once the early phase is over, the judge must remand (send back) the case to the original court that had it. However, most mass tort injury MDLs are settled before any of these remands happen.
As to jurisdiction, I could write a paper (and others have done so) on the subject. I’ll cover it briefly here as it is one of the key arguments Bayer used in its unsuccessful removal attempt. My thanks to the website Court Laws for the concise explanation that follows:
Subject Matter Jurisdiction
Subject matter jurisdiction refers to the category of items over which certain courts have the power to hear cases.
Personal Jurisdiction
As it sounds, this type of jurisdiction gives the courts power over specific people, as well as authority over some item of property.
Diversity Jurisdiction
Diversity jurisdiction does not refer to lawsuits filed over claims of discrimination or comparable legal issues, but rather to the ability of a single court to hear cases involving participants who do not normally come under the territorial or personal jurisdiction of that particular court. In other words, the parties may not be located in the same state, which would normally defeat personal jurisdiction. One of the requirements of diversity jurisdiction is that the amount in controversy (the dollar amount at stake) must be $75k or greater.
Federal Question Jurisdiction
This type of jurisdiction arises when the issue at hand involves a federal law.
In addition to the usual claptrap about how Essure has PMA protection, the most rigorous of all types of FDA review, Bayer relied heavily on diversity and federal question jurisdiction in its motion to remove.
Diversity Jurisdiction
Bayer argued that the potential damages to each plaintiff would exceed $75k and therefore the federal court had diversity jurisdiction. It further argued that complete diversity existed only if all non-Missouri plaintiffs were dismissed from the suit. Complete diversity exists only if no plaintiff is from the same state as any defendant.
Bayer argued that it was not a resident of Missouri, even though it conducts business there, via advertising and Essure sales. Therefore, complete diversity existed only for seven of the 92 plaintiffs (the seven who live in Missouri). Bayer claimed residency in Delaware, California, Pennsylvania, Germany, and the Netherlands.
It further argued that the non-Missouri plaintiffs should be dismissed under the doctrine of forum non conveniens, as the non-Missouri plaintiffs could have filed in their home states and bringing medical and other witnesses from those states to Missouri would be inconvenient to the court.
Federal Question Jurisdiction
Simply put, because the FDA approved Essure and the plaintiffs based some of their claims on federal law, Bayer said removal was proper under federal question jurisdiction.
I’ll note here that I’m giving a very high-level review of Bayer’s arguments as the motion for removal was 29 pages long and I’ve yet to discuss why Bayer wanted removal in the first place as well as why the judge said, “No!” Click the link if you’re interested in reading Bayer’s complete motion for removal.
Why Removal?
This is a strategic issue. Federal courts are generally perceived as being more defendant-friendly especially when said defendant is a large corporation. In fact, some lawyers “forum shop” attempting to get their cases filed in a court that will be more favorable to their clients. Additionally, juries tend to behave differently between state and federal courts.
Another reason, largely financial, is the fear of larger verdicts if the defendants lose. State court juries are more apt to award higher damages than are federal juries. And we all know how much Bayer loves its money!
The last reason is a double-sided strategic coin. Typically, lawyers who defend large corporate clients are much more familiar with the federal court rules as those cases are most often tried in federal court. Bayer’s attorneys may be less familiar with state court rules. The flip-side of that coin is that some plaintiffs’ attorneys (not necessarily in this case) are more familiar with state court rules.
The Judge’s Response
Judge Carol E. Jackson issued a seven-page remand order on May 26. A remand order is one which sends the suit back to the original court in which it was filed. I personally find it amusing that the judge could do in seven pages what it took Bayer 29 pages to attempt. Click the link to read Judge Jackson’s Remand Order.
Diversity Jurisdiction
The judge dealt with this argument a little over one page. Essentially, she replied to Bayer’s insistence that complete diversity only exists if the non-Missouri plaintiffs were dismissed (whether under forum non conveniens or not) by saying that the “Court has rejected these arguments in earlier cases, finding them to be nonmeritorious.” She also wrote that, as the state court clearly had subject matter jurisdiction, there was no reason to consider personal or diversity jurisdiction.
Federal Question Jurisdiction
Judge Jackson spent more time on this issue, as it seemed to have been the “stickier” of the two. Most of us familiar with the Essure crisis know the case Riegel v. Medtronic. In short, it’s the one where the Supreme Court held that PMA status provides protection from suit. Well, Judge Jackson cited it in her order because it also addressed Bayer’s federal question jurisdiction argument quite well.
Before citing Riegel v. Medtronic, she explained, “Defendants contend that plaintiffs’ state law claims raise substantial federal questions, because they are predicated on numerous alleged violations of federal requirements. To avoid preemption of their state law claims, plaintiffs are required to allege specific violations of federal requirements. The Medical Device Amendments (MDA) to the Federal Food, Drug and Cosmetic Act (FDCA) contain an express preemption provision, preventing states from imposing requirements on medical devices “different from, or in addition to” those imposed by federal law.” U.S.C § 360k(a).
Then, she dropped the hammer (or gavel, as it were), writing, “However, the MDA ‘does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations; the state duties in such a case are ‘parallel,’ rather than add to, federal requirements.’” [Emphasis added.]
She continued, “The federal issue also must be substantial and capable of resolution in federal court without disrupting the federal-state balance approved by Congress. Congress specifically declined to create a federal private cause of action under the FDCA. See Merrell Dow, 478 U.S. at 814 (“[T]he congressional determination that there should be no federal remedy for the violation of this federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently ‘substantial’ to confer federal-question jurisdiction.”). Furthermore, Congress also declined to preempt all state remedies or divest state courts of jurisdiction in the FDCA. This demonstrates that the federal issues raised by plaintiffs’ state law claims are not capable of resolution in federal court without disrupting the federal-state balance approved by Congress.”
Basically, Congress did not intend suits brought under the FDCA to be solely federal questions.
I know this has been a long post. However, it is a very important issue. The case in question, Johnson, et. al. v. Bayer Corp., et. al., filed by Ennis & Ennis, P.A., Holloran Schwartz & Gaertner LLP and Fleming, Nolen & Jez, LLP will remain in the more plaintiff-friendly state court in St. Louis, Missouri.
Holly Ennis said, in an email interview, “We were confident the cases would stay in state court and we are just as confident that the Essure cases will ultimately be allowed to go forward on their merits.”
Here’s to justice for the tens of thousands of women injured by this horrid product.
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