A bid by Boston Scientific (NYSE:BSX) to dismiss 1 of the bellwether cases in the multi-district litigation over its pelvic mesh products fell short when a federal judge ruled that the statute of limitations hadn’t expired when the lawsuit was filed.
Roseanne Sanchez sued Boston Scientific in November 2012, alleging product liability and personal injury claims over the implantation of the Pinnacle pelvic floor repair kit and the Advantage transvaginal mid-urethral sling in January 2010. Boston Scientific asked Judge Roger Goodwin of the U.S. District Court for Southern West Virginia to dismiss the case, arguing that a 2-year statute of limitations had lapsed by the time Sanchez filed suit.
Sanchez, who had 4 revision surgeries in 2010, should have known then that there was a problem with the devices; that means the statute was triggered then, the Natick, Mass.-based medical device company argued, according to court documents. Sanchez countered that she didn’t realize the persistent problems could be due to a defective device until August 2011, according to the documents.
Goodwin found that enough evidence exists to suggest that Sanchez’s claim might be true.
"According to the plaintiffs, during these medical visits, Dr. Wiltchik never told Ms. Sanchez that her symptoms were related to a defect in the mesh. Ms. Sanchez testified that during one of her medical appointments, Dr. Wiltchik said, ‘[f]or one reason or another … the skin was not healing over the mesh.’ According to Dr. Wiltchik’s progress notes on May 11, 2011, she ‘discussed at length patient’s reaction to mesh and propensity for body to expel mesh.’ Dr. Wiltchik told Ms. Sanchez she had ‘no idea why this was happening and for some reason [Ms. Sanchez’s] body did not like’ the mesh products. In addition, Dr. Wiltchik testified that she has never attributed the cause of Ms. Sanchez’s symptoms to a defect in the mesh," Goodwin wrote. "Because Dr. Wiltchik testified that she never told Ms. Sanchez her symptoms were due to a defect in the mesh, a jury could reasonably conclude that consultations with Dr. Wiltchik or a review of the medical records would not have given Ms. Sanchez a reason for suspicion of wrongdoing. While the evidence presented at trial may ultimately lead to a finding by the jury that Ms. Sanchez had a duty to investigate based on her multiple surgeries, there is enough of a material dispute to render summary judgment inappropriate."
The case, Roseanne Sanchez, et al. v. Boston Scientific Corp., is slated for trial in June as the 2nd of a planned 4 bellwethers. The 1st bellwether, Fawcett et al v. Boston Scientific Corp, is scheduled for March 10.
A raft of medical device companies including Boston Scientific, C.R. Bard (NYSE:BCR), Endo Health Solutions (NSDQ:ENDP), Cook Medical and Johnson & Johnson‘s (NYSE:JNJ) Ethicon subsidiary, are facing some 4,000 federal lawsuits over their respective mesh offerings.
A bellwether trial in Bard’s MDL that was set to begin this month was postponed after the urgent hospitalization of the wife of a key witness.
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