EAST ST. LOUIS – Chief U.S. District Judge Nancy Rosenstengel, who trimmed a mesh implant suit from 116 plaintiffs to six in April, trimmed the complaint from 13 counts to three on Aug. 13.
Rosenstengel found statutes of limitations ran out on design defect, manufacturing defect, failure to warn, breach of express warranty, and breach of implied warranty.
She found insufficient allegations for fraudulent concealment, constructive fraud, negligent misrepresentation, and deceptive practices.
She dismissed unjust enrichment, finding state law prohibits such a claim when contracts existed as they did in this case.
She denied leave to revive those counts by amending the complaint.
The action will proceed on negligence, negligent infliction of emotional distress, and loss of consortium.
Andrew Feldman of the Flint firm in Edwardsville filed the complaint in December, against Johnson & Johnson and its subsidiary Ethicon.
He claimed their TVT implant, which they made and sold for treatment of urinary incontinence, caused pelvic pain, painful intercourse, and infections.
He demanded $1 million for Brandon Baity of Marion County and five other Southern Illinois plaintiffs whose implants occurred from 2000 to 2011.
He added 110 plaintiffs from many states in January, by amending the complaint.
Rosenstengel dismissed them without prejudice in April, finding no reasonable basis for their belief that jurisdiction and venue were proper in this district.
She kept the original six, stating she’d keep them consolidated for discovery and consider later whether to sever them for trials.
In May, Feldman amended the complaint to add allegations.
In June, Johnson & Johnson counsel Charissa Walker of Cleveland moved to dismiss the entire complaint as an improper “shotgun pleading.”
“Plaintiffs do not allege sufficient facts to give defendants notice of each individual’s claims and injuries,” Walker wrote.
She offered a separate argument for dismissing each count, and Rosenstengel preferred ruling on that basis.
On statutes of limitations, she found she couldn’t toll the claims without at least knowing when plaintiffs learned of their potential claims.
She found they didn’t state when they experienced injuries or suspected the cause.
On fraud, she found “no precise information as to what statements were made, who made them, when they were made, or by what medium.”