On August 20, Bayer AG announced that it had reached a settlement in the Essure contraceptive device litigation. The settlement will resolve approximately 90% of the nearly 39,000 claims filed in the U.S. by women alleging injury as a result of using the birth control device coils. The deal will cover both resolved and pending lawsuits filed in the California JCCP consolidated litigation as well as cases pending in the U.S. District Court for the Eastern District of Pennsylvania.
The settlement was reached between Bayer and the plaintiffs on behalf of Conceptus Inc., a California start-up that created the devices. Bayer bought Conceptus in 2013 for $1.2 billion, 11 years after the FDA approved the use of the product but in 2015, as a result of consumer complaints, the FDA convened a safety panel that resulted in the application of a “black box” warning on the device. In their complaints, the women allege the product, a permanent implant inserted into the fallopian tubes, caused them to suffer a range of health problems, including abdominal pain, chronic bleeding, hair and tooth loss, miscarriages, unintended pregnancies and uterine perforation. Bayer stopped selling the product in 2018 after the FDA received 32,773 medical device reports related to Essure.
The settlement comes ahead of the first bellwether trial in California; originally scheduled for February 18, that trial was postponed. The plaintiffs in the California JCCP litigation were represented by lead counsel Fidelma L. Fitzpatrick of Motley Rice LLC; the Bayer entities were represented in the California cases by Erika L. Maley of Sidley Austin LLP and Alexandra Walsh of Wilkinson Walsh & Eskovitz.