SPRINGFIELD — The Illinois Supreme Court will hear arguments this week on whether Illinois residents have jurisdiction in state court to sue the manufacturer of a permanent female contraceptive device.
Nicole Hamby et al. v. Bayer Corporation et al., Nos. 125020, 125021, is one of two civil appeals on the high court’s oral argument docket for Wednesday. The court will hear two civil appeals on Tuesday, including a case that asks the justices whether the city of Chicago can destroy decades-old police misconduct records.
Arguments both days will be live-streamed as a public health-driven alternative to in-person attendance amid the COVID-19 outbreak.
In separate class actions filed in Madison County in 2016, plaintiffs from Illinois and other states alleged the pharmaceutical company Bayer was negligent, violated implied and express warranties, committed fraud and should be held liable for their injuries related to its product Essure, an implanted contraceptive device.
Bayer moved in September 2017 to dismiss the claim, arguing Illinois lacked general and personal jurisdiction under the June 2017 U.S. Supreme Court decision Myers Squibb Co. v. Superior Court of California.
The plaintiffs responded, holding the trial court had specific personal jurisdiction because “Illinois was a critical test bed” for Bayer’s marketing and advertising campaign.
They also alleged the company “contracted with Illinois physicians and key opinion leaders” to conduct clinical trials in the state, and that data from the trials led to Essure’s regulatory approval and nationwide promotion.
In the separate cases, Circuit Judges William A. Mudge and Dennis R. Ruth agreed and denied Bayer’s motions to dismiss in 2018, finding the nonresident plaintiffs made a prima facie showing that Illinois has specific jurisdiction over Bayer.
In May 2019, a 5th District Appellate panel affirmed Mudge’s and Ruth’s decisions in separate unpublished orders, holding that each case is “easily distinguishable” from the Bristol-Myers Squibb ruling.
Fifth District Appellate Justice Thomas M. Welch, writing for both majorities, found that unlike Bristol-Myers Squibb, where the product at issue was not developed in the same state where injuries occurred from its use, the clinical trials for Essure were conducted in Illinois.
“Bayer directly targeted and marketed in Illinois, conducted clinical trials in Illinois, contracted with Illinois physicians and facilities, and established a physician accreditation program in Illinois,” Welch wrote. “All of Bayer's conduct cited by the plaintiffs relates to the testing, development, and marketing of the Essure product.”
As a result, Welch wrote, the plaintiffs’ claims for negligence, strict products liability, breach of implied and express warranties and fraud for harm from having the Essure device implanted “all arise, at least in part,” from Bayer’s conduct in Illinois.
Litigating the case in Illinois would not be unreasonable because the state has an “undeniable interest” in resolving a claim that arose from “clinical trials held in Illinois, by Illinois doctors, in Illinois facilities,” Welch wrote.
“Also, regardless of whether the out-of-state plaintiffs’ claims are dismissed, this case will move forward in Illinois as there are also in-state plaintiffs who joined this suit,” Welch wrote. “Though we recognize that there are other forums in which the out-of-state plaintiffs could bring suit, piecemeal litigation would result in additional costs and use of judicial resources, and would run the risk of conflicting rulings.”
The plaintiffs are represented by Ann E. Callis, of Goldenberg Heller & Antognoli P.C. in Edwardsville; Holly Kelly Ennis of Ennis & Ennis P.A., in Fort Lauderdale, Fla.; and G. Sean Jez, George M. Fleming and Jessica A. Kasischke of Fleming Nolen & Jez LLP in Houston.
Bayer is represented by Virginia A. Seitz, Elizabeth C. Curtin and Michelle A. Ramirez of Sidley Austin, LLP and W. Jason Rankin of HeplerBroom LLC.