New York, New York (PRWEB) April 08, 2014
Parker Waichman LLP, along with co-counsel The Drakulich Firm; Neblett, Beard and Arsenault; Holland, Groves, Schneller, Stolze; and The Lanier Law Firm reports that the motion to remand the Medtronic Infuse Bone Graft case to the Circuit Court of the City of St. Louis has been ordered. (Memorandum and Order Entered April 4, 2014 in the United States District Court, Eastern District of Missouri, Eastern Division, Joyce Smith, et al., vs. Medtronic, Inc., et al. Case No. 4:13-CV-2220 [CEJ])
According to the complaint, InFUSE™ received U.S. Food and Drug Administration (FDA) approval for use during single level lumbar spinal fusion surgeries when implanted using what is known as an anterior approach. The 99 individuals bringing this action reside in 26 states and all underwent spinal surgery during which InFUSE™ was used “off-label,” or in ways not approved by the FDA, according to the lawsuit. The individuals allege injuries that include bone overgrowth, severe and chronic pain and numbness, and blame these injuries on Medtronic’s off-label promotion of InFUSE™, which fraudulently represented the safety of the device. (Memorandum and Order Entered April 4, 2014 in the United States District Court, Eastern District of Missouri, Eastern Division, Joyce Smith, et al., vs. Medtronic, Inc., et al. Case No. 4:13-CV-2220 [CEJ])
Medtronic sought removal of the lawsuits to federal court on matters of diversity and federal-question jurisdiction. The individuals who brought the cases against Medtronic argued that the Court lacks subject-matter jurisdiction, and moved to remand the litigation. Medtronic accused Parker Waichman LLP and their co-counsel of fraudulent misjoinder, an improper legal move that attempts to defeat diversity jurisdiction and avoid federal court by grouping individuals together who do not belong together. To maintain diversity jurisdiction, individuals involved in a case cannot be from the same state as the defendants. In this case, some of the individuals involved resided in the same states as Medtronics’ locations.
“Fraudulent misjoinder occurs when a plaintiff sues a diverse defendant in state court and joins a viable claim involving a nondiverse party, or a resident defendant, even though the plaintiff has no reasonable procedural basis to join them in one action because the claims bear no relation to each other.” Plaintiffs argued that there was never a desire to avoid federal court and noted that, all of the 99 individuals were bound by common issues of law and fact because each surgery used the same InFUSE™ product, each patient was sold the same InFUSE™ product in the same way, and each were implanted with the same InFUSE™ product in an off-label, unapproved way. The Court documents indicate that cases filed against Medtronic were “for injuries caused by the same product and arising out of the same development, distribution, marketing, and sales practices for that product, and common issues of law and fact are likely to arise in the litigation.” The claims made by the 99 individuals “arise from a series of transactions between” Medtronic, which “allegedly engaged in misleading and illegal marketing and promotion of Infuse,” and those individuals who “used Infuse.”
According to the Remand Order, the 99 individuals “were not egregiously joined in this suit, and, as such, there is no complete diversity of citizenship.” (Memorandum and Order Entered April 4, 2014 in the United States District Court, Eastern District of Missouri, Eastern Division, Joyce Smith, et al., vs. Medtronic, Inc., et al. Case No. 4:13-CV-2220 [CEJ])
The Court found that “joinder of plaintiffs alleging injury from a single drug or medical device is not ‘egregious,’ because common issues of law and fact connect plaintiffs’ claims,” according to Court documents. What’s more, the Court agreed with the 99 individuals under what is known as a “well-pleaded complaint” in that the Court lacks jurisdiction because the “only federal issue in this case has been raised, not by “the individuals bringing claims, but rather, by Medtronic’s “federal preemption defense.” (Memorandum and Order Entered April 4, 2014 in the United States District Court, Eastern District of Missouri, Eastern Division, Joyce Smith, et al., vs. Medtronic, Inc., et al. Case No. 4:13-CV-2220 [CEJ])
“Parker Waichman LLP is satisfied with the Court’s findings and eager to see this case progress to trial,” says Parker Waichman Managing Attorney, Gary Falkowitz. “As we have long stated, why would a patient choose InFuse over traditional bone graft, which is known to be effective and safe? Especially given that Medtronic has been found to have overstated InFuse benefits and has misled patients over the product’s safety and efficacy.”
A 2012 Bloomberg Businessweek report revealed that the U.S. Senate Finance Committee discovered issues with most of the initial Medtronic-supported InFUSE™ research used to promote the device. The article alleged that the physicians and researchers who wrote some 11 medical journal reports about InFUSE™ were paid about $210 million in royalties and consulting fees. The report also indicated that Senate investigators charged that Medtronic intentionally manipulated studies to minimize adverse reactions associated with InFUSE™ side effects, and to promote off-label use of the product. (http://www.businessweek.com/news/2012-10-25/medtronic-manipulated-bone-product-data-senators-say)
Two studies published on June 18, 2013 in the medical journal Annals of Internal Medicine, provided a number of significant findings. Specifically, there is no difference between using InFUSE™ and a traditional bone graft; that the initial Medtronic InFUSE™ research was biased; and that there is a small, increased risk of developing cancer or, in men, retrograde ejaculation, a cause of male infertility. (http://annals.org/article.aspx?articleid=1696646; http://annals.org/article.aspx?articleid=1696645)
Parker Waichman LLP continues to offer free legal consultations to victims of injuries allegedly caused by Medtronic’s InFUSE™ Bone Graft. If you or a loved one suffered a serious complication or injury after receiving Medtronic Infuse, please contact our office or visit the firm’s Medtronic Infuse Injury page at yourlawyer.com. Free case evaluations are also available by calling 1-800-LAW-INFO (1-800-529-4636).
Parker Waichman LLP
Gary Falkowitz, Managing Attorney
+1 (800) LAW-INFO
+1 (800) 529-4636