Pittsburgh judge in polypropylene mesh case 'followed well-settled law,' attorney says

By Karen Kidd | Jun 23, 2016

PITTSBURGH – A decision handed down by a federal judge in the state's western district, dismissing most claims but allowing others to proceed against polypropylene mesh manufacturers and providers, is unique perhaps only in its normalcy, a Philadelphia attorney said during a recent interview.

"The ruling was not a surprise, as it followed well-settled law," Stephen J. McConnell, a partner with Reed Smith in Philadelphia, said during a Pennsylvania Record email interview. "Still, sometimes one is surprised when courts follow the law. That is not so much the case with this court, but it is with others."

McConnell described the U.S. District Court for Pennsylvania's Western District, from which the judge handed her decision in the polypropylene mesh case earlier this month, as "usually, as in this case, a very good, law-following court."

Judge Cathy Bissoon, in her memorandum order handed down June 8, allowed claims of negligence to proceed against defendants in the case. Those defendants are Atrium Medical Corporation, Does 1-20, Getinge Group, Getinge USA, Maquet Cardiovascular US Sales, Maquet Cardiovascular and Maquet Medical System USA.

Bissoon ruled the plaintiff in the case had adequately pled that the defendants manufacturers had failed to warn her physicians of the hernia mesh device’s risks and misrepresented the device as being safe and effective.

"Although Defendant claims that Plaintiff’s allegations do not have the requisite level of particularity, Plaintiff does, in fact, allege that Defendants marketed the product as 'safe, fit and effective for use in hernia repair,'" Bissoon said in her memorandum order. "Plaintiff additionally alleges that Defendant intended Plaintiff to rely on its misrepresentations, which Plaintiff indicates she did."

The case stems from the May 27, 2009, surgery performed on the plaintiff in the case, Cathleen Carson, at Jefferson Regional Medical Center, where physicians attempted to repair a hernia using a polypropylene mesh, according to court documents.

Carson has since suffered a variety of complications, required additional surgery and still suffers from pains and other discomforts.

"Accordingly, Plaintiff will continue to suffer from this harm and take medication for the pain and discomfort for the remainder of her life," the memorandum order says.

Carson filed her lawsuit June 24, 2015, against Atrium Medical Corporation and other defendants, including Premier Healthcare Alliance. Carson voluntarily dropped her case against Premier Healthcare Alliance less than two weeks later.

On Sept. 8, Atrium Medical Corporation filed a motion to dismiss, saying that Carson had failed to state a claim. Carson replied to that on Oct. 30 with a six-count amended complaint outlining her causes of action in strict liability for failure to warn, for negligence, breach of express and implied warranties, fraud, and negligent misrepresentation.

Defendants in the case filed a new motion to dismiss Nov. 23 based on federal rules of civil procedure. Bissoon's memorandum order shot down that motion.

Bissoon's memorandum order was not all wins for the plaintiff, however. Bissoon dismissed claims of strict liability and breach of warranty. Bissoon barred the strict liability claim based on Pennsylvania law about Torts Restatement Comment k on “unavoidably unsafe products.”

However, Bissoon's memorandum order dismissed those claims without prejudice.

That means that neither side in the case is out of options, which include a possible plaintiff appeal to the U.S. Court of Appeals for the Third Circuit.

"I cannot say whether the plaintiff will appeal," McConnell said. "It could be that the lawyers will be content to pursue a failure to warn claim, which is usually what these things end up being. Perhaps that fact signifies a certain vagueness and squishiness with that cause of action."

It also is not clear what value may remain in the surviving claims.

"I do not know how much that cause of action is worth," McConnell said. "Possibly nothing."

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