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More than a dozen plaintiffs suing Bayer over its birth control device Essure are fighting to have their cases remanded to state court.

Fifteen plaintiffs alleging that the company negligently misrepresented the safety of the medical device and failed to warn about its risks filed a motion Monday contending that their cases needed to be sent back to the Philadelphia Court of Common Pleas where they were originally filed. Keeping the cases in the U.S. District Court for the Eastern District of Pennsylvania, where they are currently being litigated, could spell the end for some of the plaintiffs' claims, as the district court has already determined some claims in similar Essure cases to be pre-empted under federal law.

The plaintiffs' latest filing before Eastern District Judge Michael Baylson contends that there is no substantial dispute of federal law that would give rise to federal jurisdiction, and further notes that several claims have already been remanded to state courts in California, Illinois, Kentucky and Missouri.

“Essure cases are not confined only to this court,” Pensacola, Florida, attorney James Barger of Aylstock, Witkin, Kreis & Overholtz, who is representing the plaintiffs, said in the filing. “A number of federal courts throughout the country—including the Eastern District of Kentucky, the Eastern District of Missouri, the Southern District of Illinois, and the Northern District of California—have not only heard Essure cases that were removed to federal court, but have explicitly granted motions to remand those cases to state court.”

Essure is a device that consists of metal coils that are placed by a doctor using hysteroscopic equipment in the woman's fallopian tubes to prevent pregnancy. The allegations are that the devices migrate from the tubes, perforate organs, corrode or break into pieces, which can cause serious medical problems. The plaintiffs contend, along with failing to warn about the risks, that Bayer negligently failed to train doctors on how to insert the device.

Although a cluster of five Essure cases were filed in Philadelphia state court in 2014 and about a dozen additional cases were filed directly in the Eastern District, the 15 now fighting for remand were all filed earlier this year. Bayer removed the cases to federal court in March.

The plaintiffs filed a motion to remand back to state court in early April, arguing that, although they raise claims that are paralleled by federal regulatory requirements, including the Food, Drug and Cosmetic Act and the Medical Device Amendment, the plaintiffs are not diverse and only raise state law claims. The plaintiffs further contend that there is no dispute regarding federal law.

“Because plaintiffs claims do not fall into the narrow 'special and small category' of cases in which the federal issues has been deemed 'substantial' by the higher courts, and because all doubts as to jurisdiction must be resolved in favor of remand, the court should remand plaintiffs cases to state court,” the April 4 filing said.

Bayer responded April 18, saying that “by definition” the plaintiffs' claims are based on federal law.

“Plaintiffs claim that Bayer failed to provide federally mandated information to the FDA and failed to comply with FDA requirements,” Bayer's response, filed by Dechert attorney Robert Heim, said. “The claims depend on the construction of federal statutes and regulations, which presents 'important issues of federal law that sensibly belong in a federal court.'”

The plaintiffs' reply, filed Monday, comes more than a year after Eastern District Judge John Padova shaved several theories from the Essure cases he is presiding over, finding that express pre-emption applied.

Heim declined to comment, and Barger did not return a message seeking comment.