When more than 20,000 people have lined up to sue you over the irreparable harm allegedly caused by one of your products, every victory might as well be celebrated, no matter how small. This would explain the elation coming out of Bayer as 12 Essure lawsuits were dismissed by a Pennsylvania federal judge as time-barred; meaning that they had exceeded the statute of limitations and too much time had elapsed between the plaintiffs’ injuries and when they chose to take action.
Essure was pulled off shelves in the United States last summer. At the time, the U.S. was the only country in the world left selling the device and manufacturers faced increasing pressure and threats of action from the FDA. Sales plummeted on a global scale as tens of thousands of women around the world took to the internet, the halls of government, and courtrooms to try to make their voices heard. Prior to being pulled from the market, the device had received a black box warning and was even threatened with a congressional investigation. Even so, the decision to finally pull Essure was, like so many others, made by a running of the numbers rather than the consideration of human impacts and consumer safety.
Ironically, it is the very internet posts that put the spotlight on Essure’s harms that could have caused these 12 cases to be dismissed and could potentially lead to the dismissal of hundreds more. As the epicenter of the discussion of Essure’s problems and those suffering its injuries, the Essure Problems Facebook group had been joined by tens of thousands of women who were posting on the steps they were taking to seek justice. Some, however, had let years go by between their initial posts and when their lawsuits had actually been filed. When the dots were connected by Bayer attorneys and explained to the judge overseeing the consolidated cases, there would be no way to dispute the calendar of events.
“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,” wrote a Bayer spokesman. “We will vigorously defend against the remaining claims, which the plaintiffs still must attempt to prove at trial.”
That vigorous defense must still fend off tens of thousands of lawsuits that will be brought by women who were injured and who Bayer will be unable to ignore based on a technicality.