Federal judge remands pelvic mesh case to Madison County; Mudge to hear motions to dismiss March 26

A medical products manufacturer accused in a lawsuit alleging its pelvic repair system migrated in a patient’s body sought to remove the case to federal court in an effort to group it with similar cases in Multidistrict Litigation (MDL) court.

Plaintiffs Anita and Kevin Zurliene filed the Aug. 29 complaint against Dr. Demetrios Katsikas, Boston Scientific Corporation and Urology Consultants, LTD.

According to the complaint, Anita L. Zurliene claims she suffered damages when a transobturator tape migrated within her body. The tape had been placed inside her on Oct. 22, 2012, to treat stress and urgency urinary incontinence.

As a result of the alleged incident, she experienced constant pain and suffering, lost her enjoyment of a normal life, incurred medical costs and lost wages, the suit states.

She blames Katsikas and Urology Consultants for contributing to her injuries, saying they negligently failed to inform her that the tape could migrate and cause her injuries.

She also accuses Boston Scientific for manufacturing the alleged defective product.

Boston Scientific removed the case to the Southern District of Illinois on Nov. 20, arguing that the case is one of thousands of product liability cases involving the defendant and other manufacturers of transvaginal mesh that have been filed in or removed to federal court. In February 2012, an MDL involving Boston Scientific pelvic repair system products liability was created and all pending cases were transferred to Judge Joseph R. Goodwin’s courtroom in the Southern District of West Virginia.

However, on Dec. 19 federal judge Staci M. Yandle granted the plaintiffs’ request to remand the case back to the circuit court, concluding that Boston Scientific failed to meet its burden of establishing diversity of citizenship.

Boston Scientific filed a motion to dismiss on Jan. 16 for failure to properly plead a manufacturing or warning defect claim.

“Plaintiffs have not pled a manufacturing defect because Plaintiff failed to allege that the product in question deviated from its intended design,” the motion states.

The defendant also argues that the plaintiffs failed to properly plead a design defect claim, because “a plaintiff is precluded from asserting a strict liability design defect claim against the manufacturer of an ‘unavoidably unsafe’ product. Boston Scientific added that the plaintiffs failed to establish the existence of an alternative design.

Katsikas and Urology Consultants filed a motion to dismiss on Oct. 8 for failure to state a claim based on alleged medical malpractice for lack of informed consent.

They argue that the plaintiffs failed to adequately plead that the defendants had a duty to disclose material risks, failed to adequately plead that the physician failed to disclose the alleged material risks and failed to adequately plead that the plaintiff would not have consented to the procedure if the material risks had been disclosed.

In the alternative, the defendants argue the plaintiffs should be required to provide specific allegations for their medical malpractice claims.

Circuit Judge William Mudge scheduled a motion hearing to address the defendants' motions to dismiss for March 26 at 1 p.m.

The plaintiffs seek a judgment of more than $300,000 plus costs.

Joseph A. Bartholomew of Cook, Ysura, Bartholomew, Brauer and Shevlin in Belleville represents the plaintiffs.

W. Jason Rankin of HeplerBroom in Edwardsville represents Boston Scientific.

Michael R. Barth of Williams Venker & Sanders LLC in St. Louis represents Urology Consultants and Katsikas.

Madison County Circuit Court case number 14-L-1911