ST. LOUIS - U.S. District Judge Audrey Fleissig has denied in large part a defense motion to dismiss a wrongful death suit against Medtronics and allowed the claimant to file an amended complaint. 

Plaintiff Eva Westmoreland filed the suit earlier this year in federal court on behalf of her mother who died following surgery in which a graft that was "contraindicated" was implanted by a surgeon.

Fleissig's Nov. 6 ruling in the U.S. District Court for the Eastern District of Missouri indicates that Westmoreland's mother was implanted with a Medtronic Endurant II 25 mm graft after Medtronic employee Jeff Belkowski conducted an "endovascular stent planning" procedure and made the particular recommendation, even though the company's own sizing documents indicated the 25 mm graft was too large for her aorta.

The lawsuit seeks compensatory damages and aggravated circumstances damages from the defendant who allegedly knowingly recommended  a contraindicated graft procedure and a "graft that was clearly too large...according to Medtronic's own" guidelines," the ruling states.

Among other things, the defendant argued for dismissal based on the plaintiff not having pled sufficient facts to support a negligence claim. Medtronic's lawyers further argued that they had no duty to Westmoreland's mother because "medical device companies, operating through sales representatives, generally do not provide direct care to patients and thus do not owe a duty to people using their devices."

Fleissig held that Westmoreland had pled sufficient factual allegations demonstrating a plausible negligence claim.

“Here, the complaint alleges that Belkowski undertook to assist the Decedent’s surgeon in a stent sizing procedure, which would support finding Belkowski assumed a duty to provide competent assistance,” the ruling states. “The Court concludes that Defendants’ arguments regarding breach of duty and causation similarly do not support dismissal of the complaint for failure to state a claim.”

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