By Sandra Lane | Jul 1, 2018


NEW ORLEANS – Judge Sarah Vance of the U.S. District Court for the Eastern District of Louisiana said in a June 20 opinion that her decision to dismiss a defective medical products lawsuit was based more on the plaintiff's attorneys' failure to construct a convincing argument and a lack of detail than on the merits of the plaintiff's claims.

Kimberly Pellegrin sued Medtronic, Covidien, C.R. Bard Inc., and Davol Inc. on Nov. 14, 2017. The complaint brings claims under various provisions of the Louisiana Products Liability Act. On March 6, all claims against C.R. Bard and Davo were withdrawn by Pellegrin, and the remaining defendants subsequently asked the court to dismiss the lawsuit.

U.S. District Judge Sarah Vance

Pellegrin alleged in her complaint that the defendants' Parietex Composite Mesh product was used to repair her ruptured duodenal ulcer and hernia, causing her to experience severe and permanent injuries, including excruciating abdominal pain and swelling and difficulty walking. The plaintiff said she underwent a subsequent surgery to remove the mesh product and repair the damage it caused. 

The plaintiff claims the mesh product in question contains “numerous defects" and it “abrades tissues” and does not perform its intended purpose. However, Pellegrin's complaint does not claim that she experienced the alleged tissue abrasion.

In her opinion, Vance said that some of the information given “undermines the credibility of her counsel, who are obligated not to file a pleading containing factual assertions that do not have evidentiary support or will not have such support after discovery.”

In addition, the judge said, “Confusingly, plaintiff’s opposition to defendants’ motion provides a different medical diagnosis and different dates for plaintiff’s surgery. The court notes that the complaint appears to be a near-verbatim copy of two other complaints recently filed against defendants.”

To survive a motion to dismiss, Vance said that “A legally sufficient complaint must establish more than a sheer possibility that the plaintiff’s claim is true. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions or formulaic recitations of the elements of a cause of action."

Although she granted the defendants’ motion to dismiss the lawsuit, the judge also gave Pellegrin an opportunity to file an amended complaint within 21 days of the order date.

“The court directs plaintiff to include specific allegations explaining what injuries she suffered and when she first experienced those injuries," the ruling said. "Plaintiff should note that it is only the vagueness of her complaint that prevents the court from finding her claims facially prescribed.”

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