Essure sterilization implants have been aggressively marketed as a highly effective, hassle-free method of permanent contraception for women ever since their U.S. market debut in 2002. But the FDA has been receiving high volumes of Essure complaints describing complications such as persistent, intense pain, abnormal heavy bleeding, perforation of internal organs, and dangerous ectopic pregnancies. These unexpected side effects often render patients unable to work or care for their families.

Many patients feel that Essure’s manufacturer, Bayer Healthcare, should be held responsible for the declining health, emotional distress, and financial hardship they’ve had to endure over what was advertised as simple, safe birth control. The legal community anticipates that a large number of lawsuits will be filed in the coming years, opening up the possibility of group litigation.

However, joining an Essure class action won’t likely offer as many benefits for victims as filing individual personal injury lawsuits.

What Is Class Action?

Doctor Talking To Pregnant Woman And Her Husband
Class action is a form of group litigation in which a single lawsuit represents a number of similar legal claims, both existing ones and those anticipated to arise in the future. Class action lawsuits are filed by one or a few “lead plaintiffs” and contain a set of requirements that define who can join the suit to become a “class member.” For example, a class action could include all patients who suffered injuries from a particular medical device within a given time frame, or the lead plaintiffs might decide to apply more restrictions, such as limiting class members to those who suffered a certain type of injury.

The main benefit of class action is the fact that it allows many claims to be handled through just one lawsuit, which speeds up litigation considerably and reduces strain on the court system. It also allows lead plaintiffs to bolster their position by taking advantage of “strength in numbers,” and makes it possible for many claimants to take legal action without having to spend time and effort to form their own cases by attaching their claims to the class action.

Looking for more information on class action basics? Check out this guide on FindLaw.

How Do Claimants Become Class Members?

After a lawsuit is granted class action status, potential claimants are commonly invited to submit a simple form to join the suit you’ve likely seen informational ads about various class action lawsuits in magazines or on television. In some cases, all eligible claimants are automatically included and must send notice if they wish to “opt out” of the class action.

How Do Class Action Lawsuits Proceed?

Class actions are conducted much like individual lawsuits, because the lead plaintiff(s), who are responsible for representing the entire Class, are typically the only members who get to have input into the lawsuit itself, participate in trial, and make decisions in settlement negotiations. Once the class action receives a verdict in court or reaches a settlement with the defendant(s), any compensation awarded is divided up among the class members. It’s common for the lead plaintiff(s) to receive the largest share, with the rest portioned out more or less equally between the remaining claimants.

Why Joining An Essure Class Action May Be Ill-Advised

Since the idea behind class action is to have one or a few plaintiffs represent a whole class of current and future claimants, it works best in situations where most claimants are expected to have very similar cases. Yet there’s considerable reason to believe that Essure cases will differ dramatically from one another, which suggests that class action would be a poor choice for Essure litigation.

Possible Differences Among Cases

Though many Essure victims have a story that starts with the expectation of straightforward permanent birth control and progresses to an onslaught of horrifying side effects, the similarities often stop there. Every woman’s experience is different, and certain details can bear heavily on how the lawsuit should be presented, such as:

  1. Training of Physician. The lawsuit needs to be formulated differently if insufficient training of the implanting physician might be an issue. According to Heather Walsh, who filed one of the first Essure lawsuits, the lack of training received by her doctor directly caused her injuries, which included perforation of the colon by a migrated implant and the need for removal of an extraneous implant that the doctor accidentally inserted. Because of this, Walsh included negligence in training as a cause for action (reason to ask for compensation). On the other hand, in a case where the implanting physician is acknowledged as an expert in hysteroscopy, the matter of training would not be a valid cause for action.
  2. Specific Complications Experienced. The appropriate amount of restitution to request could vary widely, depending on the number and severity of the side effects or complications experienced. A plaintiff who suffered pain, emotional trauma, and financial loss from multiple correction surgeries or from the development of chronic diseases would likely be entitled to more compensation than a plaintiff who only encountered short-term side effects.
  3. Amount Of Information Received Prior To Implantation. Since another common cause of action is “failure to warn,” there’s an important distinction between cases in which plaintiffs felt they were adequately warned about possible risks before being implanted with Essure and those in which patients believe that risks were not discussed, downplayed, or even concealed from them.

Such variations between cases often translate into differing amounts of appropriate compensation, and we can imagine how claimants could potentially lose out if they join a class action that’s represented by a plaintiff who suffered from less severe side effects than they had.

Other Drawbacks

In addition to the difficulty of properly representing the majority of Essure cases with one lawsuit, class action has a number of other potential disadvantages for Essure claimants.

  • Lack Of Control Over Direction Of Lawsuit. In class action, only the lead plaintiff(s) are allowed to be full participants in the legal processes necessary for the case. This means that the other class members are effectively entrusting the fate of their legal claim to the lead plaintiff, most likely a stranger who they may never even get the chance to speak with.
  • Shared Compensation. Even if a class action receives a large court award or settlement, the money must be divided up between class members. In cases where class action suits end up with staggeringly high member numbers, individual members may receive very little or nothing at all.
  • Loss Of Legal Rights.  It’s very common in class action lawsuits to require class members to sign away their right to initiate any further legal action for the claim in question. This means that claimants who end up unsatisfied with the outcome of a class action are usually legally barred from filing their own individual lawsuits afterward.

Luckily, class action isn’t the only form of group litigation that could be employed to help streamline Essure litigation.

Could Essure Cases Be Consolidated By Multidistrict Litigation (MDL)?

Consolidating individual lawsuits exclusively for pre-trial, which allows the lawsuits to still be resolved individually, can still help save considerable resources and time for all parties involved. Such consolidation has already happened for the 5 first Essure lawsuits, all of which were filed in Pennsylvania.

If high numbers of Essure lawsuits are filed all across the country, as anticipated, they may eventually be consolidated via Multidistrict Litigation (MDL). In MDL, similar cases from different federal districts are transferred to a single court to be handled together for pre-trial proceedings. A well-known example of a pre-trial event is discovery, the formal process through which parties obtain information from one another that may be used in trial.

MDL holds many potential benefits for Essure plaintiffs:

Efficiency.  Having one judge preside over pre-trial for multiple cases saves time and energy because the judge becomes well-versed in the common details after reviewing one or two of the cases, eliminating or at least reducing redundancies such as having the same witnesses testify multiple times.

Consistency. When pre-trial rulings for similar cases are made by the same judge, it’s likely that the rulings will be more consistent than if they were made by judges from different district courts.

Individual Rights And Control. Constituent cases in an MDL remain separate lawsuits, so the individual plaintiffs maintain control over decision-making for their cases, and retain all of their legal rights.

Compensation Awarded Individually. After pre-trial, individual cases are typically either “remanded” (sent to trial in their original district) or proceed to settlement. Because the suits are handled individually after pre-trial, there is no sharing of compensation.

Make The Most Of Your Legal Rights – Contact An Experienced Attorney

We’ve seen here how joining an Essure class action suit could put claimants seeking fair compensation at a distinct disadvantage, but many injured patients may end up unwittingly choosing it after seeing a convincing class action ad.  This is why it’s important to get help from trusted, experienced lawyers, especially since litigation for complicated medical devices like Essure often proves to be challenging and complex.

The legal team at Banville Law possesses a wealth of experience in litigation against large companies and show exceptional drive and compassion in helping wronged consumers achieve justice. Our firm evaluates Essure cases free of charge, and works on contingency—we won’t accept any pay until we win compensation for you. Call us today for your free case evaluation, and you’ll receive all the answers you need to get started on your case.