ST. LOUIS – A federal judge dismissed a gross negligence count, but denied the rest of Boston Scientific Corp.’s motion to dismiss a lawsuit against it over a medical implant.
U.S. District Judge John A. Ross ruled on the case in the Eastern District of Missouri’s Eastern Division on April 13.
Virginia Cole filed suit against Boston Scientific alleging the company’s Obtryx Sling, which was implanted into her on May 27, 2014, caused her permanent injuries and several physical and mental issues. She sued for negligence (count I), strict liability - design defect (count II), strict liability - manufacturing defect (count III), strict liability - failure to warn (count IV), breach of warranties (count V), gross negligence (count VI), and punitive damages (count VII).
Judge Ross disagreed with Boston Scientific’s argument that the complaint is nothing more than speculation via a “shotgun” pleading, according to her order.
“Plaintiff’s complaint is far from a ‘shotgun’ pleading in which a plaintiff brings every conceivable claim against every conceivable defendant, resulting in a case of action so general that it fails to put the various defendants on notice of the allegations against them,” Judge Ross wrote in his order. He said that Cole has done more than her share to claim specific allegations against Boston Scientific.
Boston Scientific also argued that the statute of limitations clock started ticking on May 27, 2014, when Cole underwent her procedure. They used this date to argue that both the four-year statute of limitation (under Mo. Rev. Stat section 400.2-751(1)) and the five-year statue (via Mo. Rev. Stat. section 516.120), have run out since she didn’t sue until Nov. 5, 2019.
But because it’s not clear when Cole started suffering symptoms, there’s no foundation of when to apply the time-frame restrictions, Judge Ross said.
The judge also disagreed with Boston Scientific's challenge that Cole didn’t sufficiently plead her allegations for the case to continue.
“Plaintiff alleges a number of design defects, including the use of polypropylene material, which results in an unwanted immune reaction, as well as the non-medical grade material and counterfeit material from China…,” Judge Ross wrote in her order.
Each of her counts survived dismissal, while the gross negligence count was dismissed with prejudice.
U.S. District Court for the Eastern District of Missouri case number 4:19-CV-02976 JAR