Back in July, I reported that several plaintiffs dealing with the Essure crisis moved to create multidistrict litigation (MDL) and that the motion would be heard by the Judicial Panel on Multidistrict Litigation (JPML) on September 29. Now, I’m back to report that the plaintiffs withdrew the motion for Essure multidistrict litigation. The JPML removed the topic from the hearing schedule.
Back in July, I reported that several plaintiffs dealing with the Essure crisis moved to create multidistrict litigation (MDL) and that the motion would be heard by the Judicial Panel on Multidistrict Litigation (JPML) on September 29. Now, I’m back to report that the plaintiffs withdrew the motion for Essure multidistrict litigation. The JPML removed the topic from the hearing schedule.
This happened rather quietly on August 11 and the JPML granted the request on August 12. The original motion was to have the MDL centered in federal district court in the Eastern District of Pennsylvania under Judge Gerald McHugh. Judge McHugh is handling 23 of the 28 cases that were part of the original motion.
There are also 18 Essure cases consolidated in the Eastern District of Pennsylvania under Judge Patrese B. Tucker. These pending cases were stayed by Judge Tucker as we waited for the results of the JPML hearing.
A confidential source said that the motion to withdraw was a strategic move that would ultimately be better for plaintiffs. It is almost assured that the issue of a MDL will be revisited at some point in the future, though the source indicated that it probably wouldn’t be on the December 2016 JPML docket. As a strategy, this will allow all the plaintiffs’ attorneys to develop their cases more fully before moving for another JPML hearing.
The primary advantage to having the MDL is avoiding duplication of discovery and other pre-trial efforts and conflicting decisions from various U.S. District Court judges. The cases that are currently pending will move forward and, with the exception of those that have been consolidated at the U.S. District Court level, they will do so without pre-trial coordination.
As it currently stands, these pending cases will be heard in a number of different Federal Districts. Some of these courts and the respective jury pools are much more plaintiff-friendly than others. A good majority of the cases filed are in such Districts.
As cases move forward, there are other strategies at work, though. Recently, in California, a petition to consolidate roughly 55 cases involving over 900 women in state courts throughout the state was granted. According to a blog post by Holly Ennis of Ennis & Ennis P.A., the plaintiffs’ petition was successful. Despite Bayer’s objection to the consolidation, Judge Winifred Smith ordered that all such cases are to be coordinated with one judge and Judge Smith’s recommendation is that this occurs in Alameda County Superior Court.
The cases will be heard as what is called Judicial Council Coordinated Proceedings (JCCP), under a rule that allows issues of common facts or laws to be consolidated at the state level.
On her blog, Ms. Ennis said, “Having a single judge oversee the litigation will avoid inconsistent rulings, streamline the discovery and enable the litigation to move forward in a more direct and cohesive manner. Many of the injured ladies have waited years to have the opportunity to seek redress in the Courts and we want to enable them to do so as quickly and efficiently as possible.”
So, while we won’t see an Essure MDL for a while, we’ll certainly see some forward motion in certain state and federal courts. As more information becomes available, I’ll keep you updated.
Sources:
Essure MDL Motion Dropped After District Court Consolidates Cases
Motion to Centralize Essure Birth Control Cases Withdrawn
CALIFORNIA ESSURE LAWSUITS COORDINATED AT PLAINTIFFS’ REQUEST
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