Essure IUD. Courtesy of Bayer Whippany

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

In a 60-page opinion, U.S. District Judge John Padova of the Eastern District of Pennsylvania weighed the claims of a dozen women hand-picked by Essure maker Bayer over the intrauterine device and determined many counts should be dismissed on summary judgment because they were not brought within the allowable time frame.

The judge, who is handling hundreds of consolidated cases, noted the ruling was meant to guide the parties litigating over the allegedly defective device.

Parafinczuk Wolf Susen partner Justin Parafinczuk in Fort Lauderdale, who represents more than 2,500 of 17,000 women suing over Essure IUDs, called the decision “a big victory.” He said only one of his 12 clients was dismissed outright, and that case involved a pregnancy.

The defense was “telling the court that they were going to get the majority of the cases dismissed,” he said Monday. “The parties going forward are supposed to discuss how his findings apply to other cases.”

Discovery is under way, and Parafinczuk said, “We're looking to set a bellwether trial I would say close to the end of 2020.”

Plaintiffs also are represented by Pearlette Toussant of Cowper Law in Philadelphia, who did not return a call seeking comment by deadline.

The litigation, which is pending in both state and federal courts, is based on claims that the birth control devices failed after they were implanted, causing tissue perforations, nickel allergies, hysterectomies and in some cases unwanted pregnancies.

Although Padova's Wednesday ruling evaluated all 12 cases on an individual basis on their tort and breach of warranty claims, the ruling broke the cases down into categories. One was 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 three women who reported injuries outside the two-year time frame were allowed to proceed past the summary judgment phase, Padova ruled. However, he dismissed 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,” the judge 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 claims involved women who said they began to connect their injuries with Essure after reading 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 a doctor believed her injuries were connected to the device. However, she didn't file her lawsuit for more than two years after that.

“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.”

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

Catherine Wilson contributed to this report.