Essure permanent birth control (Photo: Bayer Whippany) Essure. (Photo courtesy of Bayer Whippany.)

A federal judge in Pennsylvania has shaved off numerous tort and breach of warranty claims brought by plaintiffs over the birth control device Essure, finding that many of the plaintiffs’ claims were not brought within the statute of limitations.

In a recent 60-page opinion, U.S. District Judge John Padova of the Eastern District of Pennsylvania weighed the claims of a dozen women suing Bayer over the device and determined that many should be dismissed at the summary judgment phase because they were not brought within the allowable time frame.

According to Padova, the ruling is meant to give guidance to the parties litigating the more than 1,000 lawsuits brought over the allegedly defective device.

The litigation, which is pending in both state and federal court, is based on claims that the birth control devices failed after they were implanted, causing the plaintiffs pain, health problems and in some cases unwanted pregnancies.

Although Padova’s Wednesday ruling evaluated all 12 cases on an individual basis regarding both their tort and breach of warranty claims, the ruling also broke the cases down more broadly into one category involving plaintiffs whose Essure devices were removed outside the two-year statute of limitations period, and another involving plaintiffs who first began to believe their injuries were connected to Essure outside the two-year period.

Most of the tort claims brought by the three representative plaintiffs who learned about their alleged Essure-related injures outside the two-year time frame were allowed to proceed past the summary judgment phase, Padova ruled; however, he dismissed those plaintiffs’ claims that Bayer breached its warranty to provide permanent birth control.

“There is no evidence in the record to support a conclusion that Bayer breached such a warranty in connection with plaintiff 11 as plaintiff 11 never became pregnant, has not been told that the device has migrated, and has not had Essure removed,” Padova said.

The ruling was a mixed bag for many of the plaintiffs, depending on how many Essure coils were implanted, what information they were given by doctors or Bayer, and what information they shared about their suspicions regarding what was causing their injuries.

A few of the claims involved women who said they began to connect their injuries with Essure thanks to Facebook forums. According to Padova, one plaintiff said in a Facebook post she had “obtained a lawyer,” and a few months later, she posted again saying that a doctor also believed her injuries were connected to the device. However, she didn’t file her lawsuit until slightly more than two years later.

“No reasonable jury could conclude that she did not know by May 6, 2014, when she told member of the Facebook Essure Problems Group,” Padova said.

In an emailed statement, Bayer spokesman Chris Loder disputed the allegations about the safety of the device and said, “Bayer is pleased with the court’s ruling that many of the plaintiffs’ claims were time-barred by the statute of limitations, and with its implication for hundreds of other claims in this litigation. We will vigorously defend against the remaining claims, which the plaintiffs still must attempt to prove at trial.”

Counsel for the plaintiffs, Pearlette Toussant of Cowper Law in Philadelphia, did not return a call seeking comment.

Bayer was represented by Robert Heim and Christopher Boisvert of Dechert.