Virginia A. Seitz partner with Sidley Austin.

Our Litigator of the Week is Sidley Austin partner Virginia Seitz for her win on behalf of Bayer Corp. before the Illinois Supreme Court in high-stakes litigation involving the Essure birth control device.

In a decision with implications for other mass tort litigation—especially suits filed in plaintiff-friendly  Madison County, Illinois—the state high court reversed both the appellate and circuit court decisions and dismissed the claims by out-of-state plaintiffs, ruling that they "identified no jurisdictionally relevant links between their claims and Illinois."

Seitz discussed the case with Lit Daily.

Lit Daily: Who is your client and what was at stake?

Virginia Seitz: Our client was Bayer Corporation and other Bayer affiliates. The issue before the Illinois Supreme Court was personal jurisdiction, and specifically whether Illinois state courts can adjudicate the claims of plaintiffs, who are not from Illinois against defendants who are not from Illinois, regarding purported injuries that did not occur in Illinois.  

Roughly 180 plaintiffs from more than 20 states across the country filed suit against Bayer in Madison County, Illinois, claiming that they were injured by the Essure contraceptive device. Plaintiffs filed in Madison County, even though most had no connection to it, because they believed it would be a favorable forum. 

 

Tell us a bit about the underlying claims. Who were the plaintiffs and what were they alleging? Who represented them?

The claims involve women who received the Essure contraceptive device and claim that they were harmed by it. Some of the plaintiffs were from Illinois, but the vast majority, about 160, were not Illinois residents and were simply shopping for a forum that they perceived as favorable. Plaintiffs alleged defects in manufacturing and misrepresentations about the device, along with a failure to warn and a failure to train physicians who provided the device.  

They were represented by G. Sean Jez, of Fleming Nolen & Jez LLP, in Houston. 

 

When and how did you become involved in the case? Who are some of the key members of your team?

Jon Cohn leads the Sidley lawyers involved in the Essure litigation across the country; he asked me to become involved with the legal strategy and motions practice in the litigation, along with other appellate lawyers at Sidley, including Erika Maley, Chris Eiswerth and Dan Hay. We also work closely with attorneys in our top-ranked products liability group, including Elizabeth Curtin and Michelle Ramirez.  

The in-house lawyer leading Bayer's team and litigation strategy nationwide is Sarah Heineman, senior assistant general counsel. She is very hands-on, dedicated to her company, and intimately involved in the legal strategy and briefing. Jason Rankin of Hepler Broom was Bayer's local counsel and he was present at all three arguments on the jurisdictional issue.

 

Set the stage—what happened in the lower courts?

Once these cases were filed, Bayer immediately filed motions to dismiss on two grounds—first, arguing that the Illinois courts lacked personal jurisdiction over out-of-state plaintiffs seeking damages from out-of-state defendants based on injuries that occurred out-of-state, and second, arguing that all of the claims are preempted by federal law.  

The trial court denied our motion to dismiss the non-Illinois plaintiffs and did not rule on the preemption motion. Bayer sought interlocutory review which was granted. The intermediate appeal was argued in the Illinois courthouse where Abraham Lincoln did his last oral argument, which was quite a thrill. The intermediate court, however, affirmed the trial court's ruling, and Bayer sought certiorari, which the [Illinois] Supreme Court granted.

 

What was your overarching theme in the litigation? How much of it was shaped by the Supreme Court's Bristol-Myers Squibb decision?

Bayer has consistently taken the position that under the Supreme Court's decision in Bristol-Myers Squibb, Illinois courts lack personal jurisdiction over non-residents' Essure claims. We did view the U.S. Supreme Court's analysis as dispositive here, and the Illinois Supreme Court opinion agrees.  

In addition, Bayer showed that there was no unfairness in this result; there is ongoing Essure litigation in California and Pennsylvania where Bayer does not contest the state courts' jurisdiction—any plaintiff could have filed in those states and litigated her claims without concern about an argument that the courts lack personal jurisdiction. 

 

Tell us about how you prepared for oral arguments—what's your process? Does it vary much from case to case?

I had argued this case in both the trial court and the intermediate appellate court where we did not prevail, and I was focused on understanding why our arguments had not been persuasive and what I might do differently. I also watched a number of arguments in the Illinois Supreme Court's video archives to get a feel for what the justices found helpful.  I had not previously argued in the Illinois Supreme Court, and so it was important to me to understand the court's norms and traditions, such as starting your oral argument by recognizing your opposing counsel after you open with "may it please the court." 

 

Describe the oral argument—when and where did it take place? What did the justices focus on?

This was a once-in-a-lifetime experience, I hope. The court held in-person oral argument despite the spreading nationwide closures and postponements due to the pandemic. I was one of a small handful of people on the plane to Springfield, and one of three guests in the hotel. I walked down the streets of the state capitol to the courthouse and did not see one other person.  

The court, however, treated the arguments that morning with care and focus; there were numerous questions about Bristol-Myers Squibb and the court zeroed in on the plaintiffs' specific claims and how they related to Bayer's contacts with Illinois.

 

What makes the decision important? What's the significance of this ruling for mass tort litigation?

This decision is important for some of the same reasons that Bristol-Myers Squibb is important: It recognizes that plaintiffs must bring their claims in a state that has real connections to those claims.  As a result, state courts will not expend their judicial and financial resources on cases that have no connection to that state or its citizens.  

Defendants in these cases will be able to predict where they can be haled into court and to litigate cases in jurisdictions where the witnesses and documents are located.