PHILADELPHIA – A New Jersey man has sued a Minnesota medical device company alleging a screw which was used in his spinal fusion surgery broke, sending its fragments into his spinal column.
Francis Bricker of Pittsgrove, N.J. filed suit in the Philadelphia County Court of Common Pleas on Jan. 12 (and likewise, amended complaints on July 2 and Aug. 10) against Medtronic, Inc., Medtronic, Medtronic Spine and Medtronic PLC, all of Minneapolis.
“On July 23, 2014, plaintiff had screws implanted during a three-level fusion. Following the surgery, plaintiff began to experience pain. On Oct. 2, 2015, x-rays revealed that a screw had broken. In March 2016, plaintiff underwent a seven-level fusion, at which point the broken screw was removed,” the suit says.
“As a proximate result of the aforementioned negligence of defendants, plaintiff suffered personal injuries and harm, and was required to pay for healthcare services along with incidental related expenses, and will be required to pay for additional healthcare, attention and services, along with incidental and related costs to monitor his condition in the future. His injuries include, without limitation, chronic pain, additional surgery and ongoing treatment to address these difficulties.”
Bricker alleges the defendants were negligent in failing to properly equip the product with appropriate safety devices, failing to offer devices or products so as to make the product safe and allowing the product to be sold in a defective condition while misrepresenting its quality to the Food and Drug Administration and the public, among other charges.
Per preliminary objections to Bricker’s second amended complaint filed on Aug. 14, Medtronic requested it be dismissed with prejudice and levied a number of counter-charges to it. These being:
• Bricker failed to name the correct defendant in the suit (Medtronic Sofamor Danek USA, Inc.);
• Bricker failed to plead sufficient facts to articulate a product liability theory, since the screws are meant to encourage fusion but would break if such fusion did not take place;
• Bricker does not have jurisdiction over the Medtronic defendants, since he is a resident of New Jersey, Medtronic is based in Minnesota and he does not claim to have been injured in Pennsylvania or claim that the Medtronic defendants did anything in Pennsylvania that caused his injury;
• Bricker has no strict liability claims under Pennsylvania law, since the Supreme Court of Pennsylvania has previously ruled that such charges are barred from cases involving medical products;
• Bricker has no implied warranty claim under Pennsylvania law, since “prescription drugs and medical devices are not sold with an implied warranty that they are safe and fit for their intended purposes”, rather, “the law recognizes that such products are used within the confines of a physician’s guidance and the patient’s unique medical history, and have no ordinary purpose.”
• Bricker failed to allege his misrepresentation claim with sufficient specificity and particularity, making “no allegations establishing the content of the representations allegedly made, who made them to whom and when, why they were false, how defendants knew or should have known of their falsity, or how plaintiff reasonably relied upon these unidentified statements.”
For counts of negligence, product liability, breach of implied warranty and misrepresentation, the plaintiff is seeking damages, jointly and severally, in excess of $50,000 and in an amount in excess of this Court’s arbitrational limit.
The plaintiff is represented by Thomas F. Sacchetta of Sacchetta & Baldino, in Media.
The defendants are represented by Gregory T. Sturges of Greenberg Traurig, in Philadelphia.
Philadelphia County Court of Common Pleas case 170903309
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com