Essure JCCP Litigation Update: Bellwether Cases and Statute of Limitations

The Essure litigation in state court in California has over ten thousand cases filed. It is the largest venue – the place where cases are filed – in the country with St. Louis, Illinois state court, and federal court in Pennsylvania behind it. A date for the first trial has not been set yet, but it is expected to be in the last quarter of 2019.

In the meanwhile, the lawyers on the Plaintiffs’ Executive and Steering Committees continue reviewing documents and taking depositions of defendant corporate witnesses. We are also preparing to pick the first group of cases to go through case-specific discovery. Discovery is the exchange of information between parties in a lawsuit through written questions and answers, production of documents, or depositions – formal questioning of witnesses under oath by attorneys for each side. In large litigations like this one, there is a bellwether process.

A bellwether is a case that goes through case-specific discovery to potentially go to trial. A bellwether case should be representative of other cases in the litigation so that its outcome can be predictive of how similarly situated cases will fare; if a jury believes the liability evidence and provides the plaintiff with a certain amount of damages, it’s more likely that is how similar cases would be resolved if they went to trial as well. Thus, the parties can settle remaining cases using that data. It is actually a lot more complicated than that, but that is some of the thinking behind this process.

When cases are selected as bellwether cases, the lawyers on each side serve written interrogatories and requests for the production of documents and things. They also take depositions about that specific case to clarify the scope of the legal claims, of the plaintiffs’ damages, and other factual and legal questions, and to assess how each witness would present at trial. A smaller number of cases generally proceed from this case specific discovery phase into expert discovery, which involves hiring physicians and other specialists to assess and conclude whether it is more likely than not that the product at issue caused the plaintiff’s injuries.

In the Essure JCCP in California, the parties are now evaluating cases to go through this bellwether process. Each side will select bellwether cases by November 2018. So if you are an attorney representing clients who had Essure and your case is filed, it may be considered as a bellwether case. If you have not filed your case, you may want to get it on file right away so it can be considered. There are important timelines associated with that, including getting your plaintiff fact sheet served on time, so be sure to connect with the plaintiffs’ leadership if you are interested.

Another important consideration is the statute of limitations, which are laws that require filing a lawsuit within a certain amount of time. Two years ago this month, the defendant changed the labeling of its Essure device to include warnings regarding several serious problems associated with the device. Accordingly, in states with a two-year statute, a court might use this date as a trigger date for the running of the statute of limitations concluding that a plaintiff knew or should have known of the risks by this date and therefore have filed by this year. We believe there should be more time available to plaintiffs; nonetheless, this is an argument we could expect from defendants.

In sum, things are about to pick up in the Essure litigation. If you have cases, you should consider filing them from a bellwether and statute of limitations perspective. The next 12 months are going to be very busy in the Essure litigation, stay tuned.