(July 19, 2011)
On May 20, Judge Oliver W. Wagner allowed for an amended complaint by three plaintiffs in a California surgical mesh device case. He wants them to explain whether their claims are based on the same defective device, or whether it is actually multiple mesh devices that share a common defect.
Mary Bower, Pamela Coleman, and Kathleen Paison all received a mesh device manufactured by Boston Scientific Corp. between August 2005 and December 2006. They all sued Boston Scientific, alleging that this device caused erosion, shrinking and extrusion of mesh, causing urinary retention, severe and constant pain, and had to continue with more surgical procedures to remove the device.
All three plaintiffs claim that Boston Scientific made false representations about the safety of their product, and that they continued to promote their product as reliable, even when they had not conducted any trials or studies to back up these statements.
Boston Scientific argued that they manufacture nine different mesh products that could have potentially fallen within the vague definition the plaintiff’s gave, and that without facts sufficient to identify the faulty product, the complaint fails to plead any specific facts for any relief.
Judge Wagner dismissed Boston Scientific’s argument, saying that “it is axiomatic that medical patients such as Plaintiffs are not always in a position to know whether an Obtryx Tansobutrator Mid-Urethral Sling System or an Advantage Transvaginal Mid-Urethral Sling System was placed inside of them while they were anaesthetized. Rather, manufacturers are in a better position to ascertain which of their devices was likely used in an given procedure, because they can compare each of their products’ unique designs, directions for use, and techniques for implantation.”
Judge Wagner also found that the plaintiff’s complaint does not comply with Federal Rule of Procedure 8, which required each plaintiff to describe where they underwent their respective surgery. Their complaint is also ambiguous as to whether they each had the same type of mesh device installed. Fraud claims must include the “time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations,” he added.
If you have used a Boston Scientific surgical mesh device and have been injured, you may be eligible to file a dangerous drug claim. Call one of our attorneys at 1-800-246-4878.
