1

Filed 1/10/24 (unmodified opn. attached)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re ESSURE PRODUCT 

CASES.

LHC GROUP, INC., 

 Plaintiff and Appellant,

v.

BAYER CORPORATION,

Defendant and Respondent.

 A166579

 (JCCP No. 4887)

 (Alameda County Super. Ct. 

 No. RG16804878)

 ORDER MODIFYING OPINION

 AND DENYING REHEARING;

 NO CHANGE IN JUDGMENT

THE COURT:

Respondent’s petition for rehearing is denied. The opinion is modified 

as follows:

The last sentence of the first full paragraph on page 10 is deleted and 

replaced with:

It simply seeks to recover damages that it and its participants 

sustained from Bayer’s failure to warn about Essure — claims assigned to 

LHC through the subrogation clause to enforce on behalf of Plan participants. 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this 

opinion is certified for publication with the exception of parts II and III of the 

Discussion section.
2

(LHC Grp., Inc., at ** 2–3; Garbell v. Conejo Hardwoods, Inc. (2011) 193 

Cal.App.4th 1563, 1571.)

Following the penultimate sentence of the first full paragraph on page 

14, add:

(Deck v. Developers Investment Co., Inc. (2023) 89 Cal.App.5th 808, 824 

[abuse of discretion exists if the trial court’s decision is based on an error of 

law].)

Date___1/10/2024___________ ___ Tucher, P.J._____________P. J.
3

In re Essure (A166579)

Trial Court: Alameda County

Trial Judge: Hon. Evelio Grillo

Attorneys: 

Law Offices of Jessica A. Schaps, and Jessica A. Schaps; Bienstock, and 

Theodore Martin Bienstock; Weisbrod Matteis & Copley, Shane Welch for 

Appellants. 

DLA Piper, Brooke Kim, Stanley J. Panikowski, Justin R. Sarno, Ilana H. 

Eisenstein for Respondents. 

Orrick, Herrington & Sutcliffe, Andrew D. Silverman for amicus curiae on 

behalf of Respondent. 
1

Filed 12/22/23 (unmodified opinion)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re ESSURE PRODUCT 

CASES.

LHC GROUP, INC., 

 Plaintiff and Appellant,

v.

BAYER CORPORATION,

Defendant and Respondent.

 A166579

 (JCCP No. 4887)

 (Alameda County Super. Ct. 

 No. RG16804878)

LHC Group, Inc. (LHC) is the administrator of a self-insured employee 

welfare benefit plan, LHC Group Benefit Plan (Plan), which is governed by 

the Employment Retirement Income Security Act of 1974 (ERISA). (29 

U.S.C. § 1001.) LHC — on behalf of itself and as a subrogee of Plan 

participants — sued Bayer Corporation (Bayer) seeking damages related to 

the manufacture and sale of Essure, an allegedly defective birth control 

device. The trial court sustained Bayer’s demurrer without leave to amend, 

concluding ERISA preempts LHC’s claims because they relate to an employee 

benefit plan. (29 U.S.C. § 1144(a).) It further concluded that, due to 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this 

opinion is certified for publication with the exception of parts II and III of the 

Discussion section. 
2

differences in implanting the devices and injuries, LHC misjoined 

participants’ claims into a single case. Finally, the court struck LHC’s claims 

for punitive damages because they are not authorized under the Plan’s 

subrogation clause. LHC appealed. 

In the published portion of our opinion, we hold LHC’s state law claims 

do not “relate to” an ERISA plan and are therefore not preempted by ERISA. 

We reverse the order dismissing the complaint but affirm the order striking 

the request for punitive damages. 

BACKGROUND1

In April 2021, LHC filed a complaint against Bayer alleging tort claims 

such as negligence, strict products liability, concealment, and negligent 

misrepresentation, as well as quasi-contract and unjust enrichment claims 

related to Essure, a permanent female birth control implanted into the 

patient’s fallopian tubes through a disposable delivery system. According to 

LHC, Bayer failed to comply with its responsibilities to warn about apparent 

serious health risks after the device was approved for sale. Specifically, 

Bayer received — but did not disclose — thousands of complaints of serious 

injuries, such as perforation of the uterus or fallopian tubes, device migration 

or fracture, prolonged bleeding, and unintended pregnancies. In addition, 

Bayer failed to disclose to the U.S. Food and Drug Administration (FDA) that 

the frequency and severity of these complications were greater than expected, 

and Essure must be removed through major surgery. 

Upon becoming aware of this information, the FDA categorized Essure 

as a restricted device. In 2016, it required Essure to include a “black box 

1 The following facts are based on the allegations in LHC’s complaint

because this appeal follows a ruling on a demurrer. (Doe v. Google, Inc.

(2020) 54 Cal.App.5th 948, 952.)
3

warning and Patient Decision Checklist” — to notify patients and physicians 

of serious health risks — and additional warnings regarding long-term risks 

— device removal could require surgery, removal of fallopian tubes, or 

hysterectomy. In July 2018, Bayer notified the FDA it would no longer sell or 

distribute Essure in the United States after December 2018. 

LHC brought its claims both as its participants’ subrogee and in its 

own right. Relevant here, the Plan included a subrogation clause noting

“each Covered Person agrees that the Plan will have the right of subrogation 

with respect to the full amount of benefits paid to or on behalf of a Covered 

Person as the result of an injury, illness, disability or death that is or may be 

the responsibility of any Third Party.” LHC sought medical expenses it 

actually paid for injured Plan participants, damages LHC itself suffered, and 

punitive damages. Attached to the complaint were participant identification 

numbers and the associated total costs resulting from Essure injuries. It did 

not seek any declaratory or injunctive relief, or any relief from or against 

Plan participants. 

Bayer filed a demurrer, which the trial court sustained without leave to 

amend. The court concluded ERISA preempted LHC’s claims because they 

“relate to” the Plan — the subrogation clause — and the court would need to 

interpret the Plan to determine LHC’s ability to sue Bayer on behalf of Plan 

participants. The court also found LHC’s claims had an impermissible 

connection with the Plan because they interfere both with the ability of Plan 

participants to assert claims on their own behalf and uniform plan 

administration. In addition, the court determined LHC’s claims on behalf of 

231 injured women were misjoined into a single case. LHC’s ability to 

recover on behalf of each Plan participant “would depend on whether each 

plan participant had a meritorious claim against Bayer.” Finally, the court 
4

struck LHC’s request for punitive damages, noting LHC, as a subrogee, could 

only recover as damages actual payments for medical expenses it made to 

Plan participants related to their injuries. 

DISCUSSION

LHC contends the trial court erred in sustaining the demurrer. 

Rulings on a demurrer are reviewed de novo, assuming the truth of the 

factual allegations and those reasonably inferred from the pleadings. 

(Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 

549, 558.) We also review de novo whether ERISA preempts state law — an 

issue of statutory construction and an affirmative defense that would entirely 

bar the state claims. (Morris B. Silver M.D., Inc. v. International Longshore 

& Warehouse etc. (2016) 2 Cal.App.5th 793, 805 (Silver); Port Medical 

Wellness Inc. v. Connecticut General Life Insurance Co. (2018) 24 Cal.App.5th 

153, 171–172.) LHC bears the burden of demonstrating the court erroneously 

sustained the demurrer. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655.) 

I.

LHC argues the trial court erred by concluding ERISA preempts its 

claims because they “relate to” — have a “reference to” or “connection with” 

— an ERISA plan. We agree.

“ERISA is a comprehensive statute designed to promote the interests of 

employees and their beneficiaries in employee benefit plans.” (Shaw v. Delta 

Air Lines, Inc. (1983) 463 U.S. 85, 90 (Shaw).) It contains expansive 

preemption provisions, designed to ensure employee benefit plan regulation 

is an exclusively federal concern. (29 U.S.C. § 1144; Marshall v. Bankers Life 

& Casualty Co. (1992) 2 Cal.4th 1045, 1050; Ingersoll-Rand Co. v. McClendon 

(1990) 498 U.S. 133, 138 (Ingersoll-Rand).) At issue here, ERISA preempts 

“any and all State laws insofar as they . . . relate to any employee benefit 
5

plan,” with exceptions not relevant here.2 (29 U.S.C. § 1144(a), (b)(2)(A).) 

Any state-law claim that falls within the scope of ERISA’s remedies “is 

preempted as conflicting with the intended exclusivity of the ERISA remedial 

scheme.” (Paulsen v. CNF Inc. (9th Cir. 2009) 559 F.3d 1061, 1084

(Paulsen).) There are two categories of state laws conflict-preempted under 

ERISA: if it has a “reference to” an ERISA plan, or “if it has a connection 

with” such a plan. (Shaw, at pp. 96–97.) Bayer must overcome “the starting 

presumption that Congress does not intend to supplant state law.” (New 

York State Conference of Blue Cross & Blue Shield Plans v. Travelers 

Insurance Co. (1995) 514 U.S. 645, 654 (Travelers).)

First, relying entirely on the Plan’s subrogation clause, Bayer argues 

ERISA preempts LHC’s tort claims, such as negligence, strict products 

liability, concealment, and negligent misrepresentation, and quasi-contract 

and unjust enrichment claims on behalf of its members because they 

reference an ERISA plan. Not so. “ERISA’s preemptive scope is broad, but 

not all-encompassing.” (Nevill v. Shell Oil Co. (9th Cir. 1987) 835 F.2d 209, 

212; Travelers, supra, 514 U.S. at pp. 655–656 [counseling against extending 

the phrase “relate to” to “the furthest stretch of its indeterminacy”].) A state 

law has a “reference to” ERISA plans where it “acts immediately and 

2 This is one of ERISA’s two preemption provisions. (Cleghorn v. Blue 

Shield of California (9th Cir. 2005) 408 F.3d 1222, 1225.) The second — not 

at issue in this appeal — is the complete preemption provision in section 502, 

subdivision (a) of ERISA. (29 U.S.C. § 1132(a).) The sole purpose of section 

502 “is to ensure that federal courts remain the sole forum and the sole 

vehicle for adjudicating claims for benefits under ERISA.” (Rudel v. Haw.

Mgmt. All. Ass’n. (9th Cir. 2019) 937 F.3d 1262, 1269.) “Therefore, any statelaw cause of action that duplicates, supplements, or supplants the ERISA 

civil enforcement remedy [in section 502] conflicts with the clear 

congressional intent to make the ERISA remedy exclusive and is therefore 

pre-empted.” (Aetna Health Inc. v. Davila (2004) 542 U.S. 200, 209.)
6

exclusively upon ERISA plans” or “where the existence of ERISA plans is 

essential to the law’s operation.’ ” (Gobeille v. Liberty Mutual Insurance Co. 

(2016) 577 U.S. 312, 319–320 (Gobeille).) Claims affecting an ERISA plan in 

at most, a tenuous, remote, or peripheral manner do not “relate to” an ERISA 

plan. (Silver, supra, 2 Cal.App.5th at p. 805.) 

Generally, claims based on common law negligence principles, such as 

the ones at issue here, do not act “ ‘immediately and exclusively’ on ERISA 

plans.” (Paulsen, supra, 559 F.3d at pp. 1066, 1082.) Indeed, LHC’s tort 

claims — based on Bayer’s failure to warn about Essure’s alleged defects —

make “no reference to” and “indeed function[] irrespective of, the existence of 

an ERISA plan.” (Ingersoll-Rand, supra, 498 U.S. at p. 139.) Negligence law 

in failure-to-warn cases requires plaintiffs “to prove that a manufacturer or 

distributor did not warn of a particular risk for reasons which fell below the 

acceptable standard of care.” (Anderson v. Owens-Corning Fiberglas Corp. 

(1991) 53 Cal.3d 987, 1002.) Strict liability claims require a plaintiff to prove 

“the defendant did not adequately warn of a particular risk that was known 

or knowable in light of the generally recognized and prevailing best scientific 

and medical knowledge available at the time of manufacture and 

distribution.” (Ibid.) Nothing suggests the existence of an ERISA plan is a 

critical factor in establishing Bayer’s liability under any of the traditional 

state laws of general application. (Contra Ingersoll-Rand, at pp. 139–140 

[ERISA preempted claim employer principally terminated employee to avoid 

contributing to pension fund since “the existence of a pension plan is a critical 

factor in establishing liability under the State’s wrongful discharge law”].) 

True, LHC could not allege its claims in the absence of the Plan’s 

subrogation clause. (Silver, supra, 2 Cal.App.5th at p. 807.) By itself, 

however, this is insufficient to demonstrate the existence of the Plan is 
7

“essential” to LHC’s claims. (See, e.g., Ingersoll-Rand, supra, 498 U.S. at 

p. 139 [the “fact that collection might burden the administration of a plan did 

not, by itself, compel pre-emption”].) ERISA does not preempt “run-of-themill state-law claims” such as “torts committed by an ERISA plan,” even 

though those claims may obviously affect and involve ERISA plans as well as 

their trustees. (Mackey v. Lanier Collection Agency & Service, Inc. (1988) 486 

U.S. 825, 833, 841 [ERISA did not preempt the state’s statutory general 

garnishment procedures despite being used to collect judgments against 

ERISA plan participants].) Subrogation simply “places the insurer in the 

shoes of its insured to the extent of its payment.” (Progressive West Ins. Co. 

v. Superior Court (2005) 135 Cal.App.4th 263, 272.) Neither party disputes 

the terms of the Plan, nor do LHC’s claims turn on an analysis of those 

terms. Without more, the subrogation clause does not warrant preemption.3 

(Cf. Silver, supra, 2 Cal.App.5th at p. 807 [that “ERISA plan is an initial step 

in the causation chain, without more, is too remote of a relationship with the 

covered plan to support a finding of preemption”].) 

Central States, Southeast and Southwest Areas Health and Welfare 

Fund v. Health Special Risk, Inc. (N.D. Tex., June 13, 2013, Civ. A. No. 3:11-

cv-2910-D) 2013 U.S. Dist. LEXIS 83400 (Central States) — holding a statelaw subrogation claim is conflict-preempted under ERISA because it 

addresses the right to receive plan benefits — does not alter our conclusion. 

We are not bound by lower federal court decisions, even on federal questions. 

(Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58.) Nor is Central States 

persuasive. (Central States, supra, * 14.) The court relied entirely on Arana 

3 At oral argument, Bayer argued for the first time that California law 

regarding subrogation bars LHC’s claims against third party tortfeasors. We 

express no opinion on this issue.
8

v. Ochsner Health Plan (5th Cir. 2003) 338 F.3d 433 (Arana), a case 

addressing whether “ERISA completely preempted the state-law claim of a 

plan beneficiary seeking a declaratory judgment that he was not obligated to 

reimburse his ERISA plan from proceeds of a tort action settlement for health 

benefits paid by the plan.” (Central States, supra, * 16, italics added.) 

Bayer’s attempt to extract preemption principles from Arana is inapt —

no comparable dispute exists here. LHC alleges it was liable for its injured 

members’ medical treatment and hospital expenses due to Essure — that is, 

LHC bore the costs of Essure. Unlike the ERISA plan in Arana, LHC does 

not seek plan benefits, or any declaratory or injunctive relief from or against 

any Plan participants. (LHC Grp., Inc. v. Bayer Corp. (N.D. Cal., Mar. 14, 

2022, No. 21-cv-03877-HSG) 2022 U.S. Dist. 44929 (LHC Grp., Inc.).) Rather, 

LHC seeks damages from a third party in the amount of the health care costs 

incurred by injured members, to which LHC was subrogated. Where the 

state-law claims do not entail interpreting an ERISA plan, dictate any 

distribution of benefits, and the claimant has “already paid ERISA benefits” 

and does not dispute “the correctness of the benefits paid,” the claim is not 

preempted. (Providence Health Plan v. McDowell (9th Cir. 2004) 385 F.3d 

1168, 1172.) 

Second, LHC’s claims do not have an impermissible connection with an 

ERISA plan. In reaching this conclusion, we presume Congress did “not 

intend to supplant” state laws “regulating a subject of traditional state 

power” unless they result in direct regulation of a fundamental ERISA 

function. (Gobeille, supra, 577 U.S. at p. 325.) An impermissible connection 

exists where the state law governs a “ ‘central matter of plan 

administration,’ ” “ ‘interferes with nationally uniform plan administration,’ ” 

(id. at p. 320) forces “an ERISA plan to adopt a certain scheme of substantive 
9

coverage,” or restricts “its choice of insurers.” (Travelers, supra, 514 U.S. at 

p. 668.) Critical to this determination is whether the state law bears on an 

ERISA-regulated relationship — that is, a relationship between the plan and 

plan member, plan and employer, and employer and employee. (WSB Elec. v. 

Curry (9th Cir. 1996) 88 F.3d 788, 794.) 

As a preliminary matter, LHC’s tort and quasi-contract claims involve 

areas traditionally regulated by the state. (Geweke Ford v. St. Joseph’s Omni 

Preferred Care Inc. (9th Cir. 1997) 130 F.3d 1355, 1359 [contract law 

traditionally regulated by states]; Keams v. Tempe Technical Inst., Inc. (9th 

Cir. 1994) 39 F.3d 222, 226 [negligence and negligent misrepresentation 

traditionally regulated by states].) Bayer must accordingly overcome the 

considerable presumption that Congress did not intend to supplant those 

laws. (Gobeille, supra, 577 U.S. at p. 325.) It fails to do so. 

To begin, LHC’s claims against Bayer, a third-party pharmaceutical 

company rather than Plan participants, do not bear on any of these ERISAregulated relationships. (Bafford v. Northrop Grumman Corp. (9th Cir. 2021) 

994 F.3d 1020, 1031 [plan beneficiaries’ professional negligence claims 

against outside administrator for grossly overestimating monthly benefits not 

conflict preempted under ERISA].) Indeed, state-law negligence claims

generally do “not encroach on any actuary-participant relationship governed 

by ERISA when asserted against a non-fiduciary actuary.” (Paulsen, supra,

559 F.3d at p. 1083.) Rather, state-law claims that arise from ordinary 

relationships with an ERISA-regulated entity and “do not touch on [ERISA] 

status,” as is the case here, are not preempted. (Abraham v. Norcal Waste 

Systems, Inc. (9th Cir. 2001) 265 F.3d 811, 822 [ERISA does not “regulate 

those relationships where a plan operates like any other commercial entity,” 

such as “the plan and the landlords from whom it leases its office space”], 
10

abrogated on other grounds by Fossen v. Blue Cross & Blue Shield of Mont., 

Inc. (9th Cir. 2011) 660 F.3d 1102, 1112.) 

While LHC’s claims depend in part on its subrogation rights, this does 

not directly affect the relationship between the Plan and its participants, as 

Bayer contends. Although the trial court may be required to review the 

subrogation clause, LHC’s claims do not address an area of exclusive federal 

concern, such as seeking plan benefits. (LHC Grp., Inc., supra, at * 2; Silver, 

supra, 2 Cal.App.5th at p. 804.) It simply seeks to recover damages that it 

and its participants sustained from Bayer’s failure to warn about Essure —

claims assigned to LHC to enforce on behalf of Plan participants. (LHC Grp., 

Inc., at ** 2–3.) 

Nor does the possibility that the trial court may need to consider the 

Plan’s relationship to its participants — specifically, how to address 

competing privacy interests of participants in different states — render 

LHC’s claims a matter of federal concern. Leaving aside Bayer’s failure to 

support this assertion with any case law or statutory authority, LHC’s claims 

have “ ‘a tenuous, remote, or peripheral connection with” the Plan and its 

participants’ privacy rights, “as is the case with many laws of general 

applicability.” (Travelers, supra, 514 U.S. at p. 661.) The claims do not 

threaten to impose different regulatory requirements on the Plan’s operation, 

such as by requiring it to maintain different sets of records in different states, 

making different sets of benefits available, or complying with different 

fiduciary standards. (Fort Halifax Packing Co. v. Coyne (1987) 482 U.S. 1, 9.) 

Nor do they bind the Plan to do anything. (Howard Jarvis Taxpayers 

Association v. Cal. Secure Choice Ret. Sav. Program (9th Cir. 2021) 997 F.3d 

848, 858 [“ERISA applies to ‘plans, rather than simply to benefits,’ ” thus 

indicating the distinction between state laws that are beyond ERISA’s 
11

preemptive scope].) Rather, the claims are remote from that with which 

ERISA is concerned — “reporting, disclosure, fiduciary responsibility, and the 

like.” (Shaw, supra, 463 U.S. at p. 98.) 

Because regulating the negligent behavior of third parties does not 

target any aspect of an ERISA-occupied field or impede ERISA’s objectives, 

LHC’s claims do not have an impermissible “connection with” ERISA plans. 

None of Bayer’s cited authorities — which address disputes between ERISArelated parties or ERISA-centric issues — persuade us otherwise. (See, e.g., 

Oregon Teamster Employers Trust v. Hillsboro Garbage Disposal, Inc. (9th 

Cir. 2015) 800 F.3d 1151, 1156 [ERISA preempted plan’s claims that 

defendant breached terms of the ERISA plan and court was required to 

analyze the plan to establish whether beneficiaries were eligible plan 

participants]; Wise v. Verizon Communications, Inc. (9th Cir. 2010) 600 F.3d 

1180, 1191 [preemption applied to beneficiary’s state claims against employer 

resulting in loss of insurance benefits, as claims depended on the existence of 

an ERISA-covered plan to demonstrate damages].) 

In sum, ERISA does not preempt LHC’s claims. 

II.

LHC next contends the trial court erred by sustaining the demurrer on 

the basis that the complaint misjoined Plan participants into a single action. 

Joinder of plaintiffs is permitted if they assert a right to relief arising out of 

the same transaction or occurrence, and if there is a common question of law 

or fact. (Code Civ. Proc., § 378, subd. (a)(1).) The statute is liberally 

construed in favor of joinder. (Petersen v. Bank of America Corp. (2014) 232 

Cal.App.4th 238, 249 (Petersen) [permissive joinder promotes trial 

convenience, administrative efficiency, and expediting a final 
12

determination].) Based on the statute’s language and its broad construction, 

we agree the court erred in sustaining the demurrer on this basis. 

Relevant here, courts broadly construe the requirement that relief arise 

from the same transaction or series of transaction — the element satisfied if 

there is any factual relationship among the joined claims.4 (Petersen, supra, 

232 Cal.App.4th at p. 249.) A right to relief arising out of the same 

transaction or series of transactions exists where plaintiffs’ causes of action 

allege a common scheme leading to a series of transactions similar in kind 

and manner of operation. (Anaya v. Superior Court (1984) 160 Cal.App.3d 

228, 232–233 (Anaya) [claims of over 200 employees and employees’ family 

members properly joined despite claiming injuries from exposure to 

hazardous chemicals at place of employment over the course of 20 to 30 

years]; State Farm Fire & Cas. Co. v. Superior Court (1996) 45 Cal.App.4th 

1093, 1113 (State Farm) [joinder authorized for 165 individual homeowners 

whose homes were damaged in an earthquake in an action against their 

insurer], abrogated on another point as stated in Cel-Tech Communications, 

Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 183.) 

Applying the liberal rule permitting joinder, allegations regarding a 

common scheme exist here. (Anaya, supra, 160 Cal.App.3d at p. 232.) LHC 

alleged Essure was defective and unreasonably dangerous due to inadequate 

warnings and instructions. Specifically, Bayer failed to comply with federal 

regulations requiring adequate investigations and handling of complaints 

4 There does not appear to be any dispute LHC’s complaint raises 

common questions of law regarding the Plan participants’ claims. We also 

find no issue with this factor. (David v. Medtronic, Inc. (2015) 237 

Cal.App.4th 734, 737–738 [common questions of law or fact exist in case 

where plaintiffs allege defendant is liable for injuries when it was aware of 

dangers of a particular use of a medical device, but nonetheless widely 

promoted its use].)
13

related to Essure. It failed to timely report adverse events or serious health 

risks of the device to the FDA and physicians. The FDA repeatedly cited 

Bayer for failure to report complications, demonstrating “ongoing, systematic, 

and widespread conduct by Defendants that signified problems with the 

device started before” participants received Essure. Moreover, it alleged 

Bayer willfully deceived the public — including injured Plan participants —

by concealing material information. Timely and adequate reporting of 

adverse events to the FDA, LHC alleged, would have effectively warned 

physicians. These allegations “reflect a claim containing common facts 

central” (State Farm, supra, 45 Cal.App.4th at p. 1113) to Bayer’s alleged 

duties and failures — a systematic failure to warn and misrepresentation 

that invaded the rights of Plan participants. (Aldrich v. Transcontinental 

Land & Water Co. (1955) 131 Cal.App.2d 788, 791–792 [joinder proper where 

plaintiffs purchased property in same subdivision based on identical 

misrepresentations about the property]; compare with David v. Medtronic, 

Inc., supra, 237 Cal.App.4th at p. 741 [joinder improper where plaintiffs 

failed to allege, for example, surgery occurred based at “least in part on the 

same representation”].) This satisfies the requirement of the same 

transaction or series of transactions. (State Farm, at p. 1113.)

Differences in dates of device implantation or the resulting injuries do 

not render joinder inappropriate. (Anaya, supra, 160 Cal.App.3d at p. 233 

[noting community of interest linking petitioners not destroyed because 

employees were exposed on different occasions].) Joinder is permissible when 

based on commonality regarding liability rather than damages. (Petersen, 

supra, 232 Cal.App.4th at p. 252.) In those circumstances, while the 

damages among Plan participants may vary widely, “that is not the salient 

point.” (Id. at p. 253.) Rather, it is that “liability is amenable to mass action 
14

treatment.” (Ibid.) To the extent there may be difficulties in tracking the 

damages of the 231 Plan participants, that may be addressed in proceedings 

under Code of Civil Procedure section 379.5 — authorizing courts to make 

orders as appear just, including ordering separate trials. (Anaya, pp. 233–

234.) But it does “not furnish grounds for finding a misjoinder of plaintiffs.” 

(Id. at p. 234.)

For that reason, we reject Bayer’s additional argument that dismissal 

was proper because the complaint — joining many injured participants in a 

single action — violated the trial court’s case management order. The order 

stated each plaintiff must file a separate case because joining multiple 

plaintiffs in a single complaint is misjoinder based on the facts of Essure 

cases. As a preliminary matter, Bayer concedes LHC is a single plaintiff. 

Thus, LHC was authorized under the case management order to file its 

claims against Bayer in a single action. To the extent the case management 

order prohibited a single plaintiff from bringing multiple claims against a 

single defendant based on misjoinder, this was improper. Trial courts no 

doubt have broad discretion to create suitable methods of practice to manage 

complex litigation, such as using a case management order. (Rutherford v. 

Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; Lu v. Superior Court (1997) 

55 Cal.App.4th 1264, 1267.) But the orders must not conflict with any 

statewide statute, rule of law, or rules of court. (Rutherford, at p. 967.) As 

explained, the court’s justification for requiring plaintiffs to file separate 

cases was based on an erroneous reading of the joinder provisions. The case 

management order is not a sufficient basis for dismissing LHC’s complaint. 

III.

Finally, LHC contends the trial court erred by striking its claims for 

punitive damages. On this point, we disagree.
15

Resolving whether punitive damages are authorized for LHC’s various 

tort and quasi-contract claims is unnecessary. As the trial court concluded, 

the subrogation clause upon which LHC bases its claims states “the Plan will 

have the right of subrogation with respect to the full amount of benefits paid 

to or on behalf of a Covered Person as the result of an injury, illness, 

disability or death that is or may be the responsibility of any Third Party.” 

(Italics added.) Under the plain terms of the Plan agreement, LHC cannot 

recover damages in subrogation greater than those it paid to cover Plan 

participant benefits. (Johnson v. Oliver (1968) 266 Cal.App.2d 178, 181, 182 

[“the subrogation rights of the insurer are limited in extent to the amount 

paid by it to its insured and do not encompass the whole cause of action”].) 

Punitive damages do not compensate injured parties. (Ferguson v. 

Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1046.) They 

“ ‘punish the tortfeasor whose wrongful action was intentional or malicious, 

and to deter him and others from similar extreme conduct.’ ” (Ibid.) Indeed, 

consistent with these principles, LHC expressly states it is entitled to 

punitive damages in an appropriate amount “to punish Defendants and deter 

them from similar conduct in the future” based on conduct that disregarded 

the rights of the Plan’s members. LHC does not allege that the amount the 

Plan paid to the insured included punitive damages. Nor does LHC allege it 

is itself entitled to punitive damages. Therefore, LHC cannot recover such 

damages.

DISPOSITION

The judgment dismissing the complaint is reversed. The order striking 

LHC’s request for punitive damages is affirmed. LHC is entitled to costs on 

appeal. (Cal. Rules of Court, rule 8.278(a)(5).
16

RODRÍGUEZ, J. 

WE CONCUR:

TUCHER, P. J. 

FUJISAKI, J. 

A166579
17

In re Essure (A166579)

Trial Court: Alameda County

Trial Judge: Hon. Evelio Grillo

Attorneys: 

Law Offices of Jessica A. Schaps, and Jessica A. Schaps; Bienstock, and 

Theodore Martin Bienstock; Weisbrod Matteis & Copley, Shane Welch for 

Appellants. 

DLA Piper, Brooke Kim, Stanley J. Panikowski, Justin R. Sarno, Ilana H. 

Eisenstein for Respondents. 

Orrick, Herrington & Sutcliffe, Andrew D. Silverman for amicus curiae on 

behalf of Respondent.