UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Transcription

1 CASE 0:17-cv Document 1 Filed 06/12/17 Page 1 of 6 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA IN RE: Bair Hugger Forced Air Warming Products Liability Litigation MDL No (JNE/FLN) This Document Relates to All Actions. JOHN GAGE AND NAOMI GAGE, FIRST AMENDED MASTER SHORT FORM COMPLAINT AND JURY TRIAL DEMAND PLAINTIFFS, VS. 3M COMPANY AND ARIZANT HEALTHCARE, INC., DEFENDANTS. 1. Plaintiffs, John Gage and Naomi Gage, state and bring this civil action in MDL No , entitled In Re: Bair Hugger Forced Air Warming Products Liability Litigation. Plaintiffs are filing this Short Form Complaint as permitted by Pretrial Order #8 of this Court. PARTIES, JURISDICTION AND VENUE 2. Plaintiff, John Gage, is a resident and citizen of the State of Ohio and claims damages as set forth below. 3. Plaintiff s Spouse, Naomi Gage, is a resident and citizen of the State of Ohio, and claims damages as set forth below. 4. Jurisdiction is proper based upon diversity of Citizenship. 5. Proper Venue: The District Court in which remand trial is proper and where 1

2 CASE 0:17-cv Document 1 Filed 06/12/17 Page 2 of 6 this Complaint would have been filed absent the direct filing order by this Court is the Northern District of Ohio and the District of Minnesota. 6. Plaintiff brings this action: On behalf of himself; In a representative capacity as the _ of the having been duly appointed as the by the Court of _. A copy of the Letters of Administration for a wrongful death claim is annexed hereto if such letters are required for the commencement of such a claim by the Probate, Surrogate or other appropriate court of the jurisdiction of the decedent. FACTUAL ALLEGATIONS 7. On or about March 21, 2014, Plaintiff underwent surgery during which the Bair Hugger Forced Air Warming system (hereinafter Bair Hugger ) was used during the course and scope of his surgery at the St. Vincent s Charity Medical Center, 2351 East 22nd Street, in Cleveland, Ohio, by Dr. Audley M. Mackel. 8. Contaminants introduced into Plaintiff s open surgical wound as a direct and proximate result of use of the Bair Hugger during the subject surgery resulted in Plaintiff developing a periprosthetic joint infection ( PJI ), also known as a deep joint infection ( DJI ). Plaintiffs medical records indicate Methicillin-Sensitive Staphylococcus Aureus was discovered. 9. As a result of Plaintiff s infection caused by the Bair Hugger, Plaintiff has undergone a two-staged revision on or about June 26, 2015 and September 4, 2015 at St. 2

3 CASE 0:17-cv Document 1 Filed 06/12/17 Page 3 of 6 Vincent s Charity Medical Center, 2351 East 22nd Street, in Cleveland, Ohio, by Dr. Audley M. Mackel. ALLEGATIONS AS TO INJURIES 10. (a) Plaintiff claims damages as a result of : INJURY TO HIMSELF INJURY TO THE PERSON REPRESENTED WRONGFUL DEATH SURVIVORSHIP ACTION ECONOMIC LOSS (b) Plaintiff s spouse claims damages as a result of: LOSS OF SERVICES LOSS OF CONSORTIUM 11. Defendants, by their actions or inactions, proximately caused the injuries to Plaintiffs. DEFENDANT-SPECIFIC ALLEGATIONS AND THEORIES OF RECOVERY 12. The following claims and allegations are asserted by Plaintiffs and are herein adopted by reference: FIRST CAUSE OF ACTION - NEGLIGENCE; SECOND CAUSE OF ACTION - STRICT LIABILITY; FAILURE TO WARN DEFECTIVE DESIGN AND MANUFACTURE THIRD CAUSE OF ACTION BREACH OF EPRESS WARRANTY; FOURTH CAUSE OF ACTION- BREACH OF IMPLIED 3

4 CASE 0:17-cv Document 1 Filed 06/12/17 Page 4 of 6 WARRANTY OF MERCHANTBILITY LAW OF THE STATE OF OHIO, OHIO REV. CODE ANN , ET SEQ.; FIFTH CAUSE OF ACTION- VIOLATION OF THE MINNESOTA PREVENTION OF CONSUMER FRAUD ACT; SITH CAUSE OF ACTION VIOLATION OF THE MINNESOTA DECEPTIVE TRADE PRACTICES ACT; SEVENTH CAUSE OF ACTION- VIOLATION OF THE MINNESOTA UNLAWFUL TRADE PRACTICES ACT; EIGHTH CAUSE OF ACTION- VIOLATION OF THE MINNESOTA FALSE ADVERTISING ACT; NINTH CAUSE OF ACTION- CONSUMER FRAUD AND/OR UNFAIR AND DECEPTIVE TRADE PRACTICES UNDER LAW OF THE STATE OF OHIO, OHIO REV. CODE ANN , ET SEQ.; TENTH CAUSE OF ACTION NEGLIGENT MISREPRESENTATION; ELEVENTH CAUSE OF ACTION- FRAUDULENT MISREPRESENTATION; TWELFTH CAUSE OF ACTION FRAUDULENT CONCEALMENT; THIRTEENTH CAUSE OF ACTION LOSS OF CONSORTIUM; and FOURTEENTH CAUSE OF ACTION UNJUST ENRICHMENT. In addition to the above, Plaintiffs assert the following additional causes of action under applicable state law: _. 4

5 CASE 0:17-cv Document 1 Filed 06/12/17 Page 5 of 6 PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment against Defendants as follows: 1. For compensatory damages; 2. Pre-judgment and post-judgment interest; 3. Statutory damages and relief of the state whose laws will govern this action; 4. Costs and expenses of this litigation; 5. Reasonable attorneys fees and costs as provided by law; 6. Equitable relief in the nature of disgorgement; 7. Restitution of remedy Defendants unjust enrichment; and 8. All other relief as the Court deems necessary, just and proper. JURY DEMAND Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiffs hereby demand a trial by jury as to all claims in Complaint so triable. Dated: June 12, 2017 Respectfully submitted, MESHBESHER & SPENCE, LTD. /s/genevieve M. Zimmerman Genevieve M. Zimmerman (MN #330292) Ashleigh E. Raso (MN #393353) 1616 Park Avenue Minneapolis, MN Phone: Fax: gzimmerman@meshbesher.com araso@meshbesher.com Attorneys for Plaintiff 5

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7 CASE 0:17-cv Document 1-1 Filed 06/12/17 Page 1 of 1 JS 44 (Rev. 12/12) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conterence of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCNONS ON NET PAGE OF MIS FORM.) I. (a) PLAINTIFFS DEFENDANTS 3M John Gage and Naomi Gage Company and Arizant Healthcare Inc. (b) County of Residence of First Listed Plaintiff Cuyahoga County of Residence offirst Listed Defendant Ramsey (ECEPTIN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) (c) Attorneys (Firm Name, Address, and Telephone Number) Genevieve M. Zimmerman, Esq. Ashleigh E. Raso, Esq. Meshbesher & Spence, Ltd Park Avenue Minneapolis, MN (612) Citizen or Subject ofa Foreign Nation Foreilut Country 11-A-xm-Truropct.v.,441Q4_,CYPITPR7g.IPAIPTITINiSItiti IV. NATURE OF SUIT (Place an "" in One Box Only) tattsfe(in1ravvp, F I VIII LIAI.. O 110 Insurance PERSONAL INJURY PERSONAL INJURY Drug Related Seizure Appeal 28 USC False Claims Act O 120 Marine Airplane Personal Injury of Property 21 USC Withdrawal State Reapportionment O 130 Miller Act Airplane Product Product Liability Other 28 USC Antitrust Banks and O 140 Negotiable Instrument Liability 367 Health Care/ Banking O 150 Recovery of Overpayment Assault, Libel & Pharmaceutical aprdpertyirihhtswie Commerce & Enforcement ofjudgment Slander Personal Injury Copyrights Deportation O 151 Medicare Act Federal Employers' Product Patent Racketeer Influenced and Liability O 152 Recovery of Defaulted Liability Asbestos Personal Trademark Corrupt Organizations Student Loans Marine Injury Product Consumer Credit (Excludes Veterans) Marine Product Liability :i:', :".:.--2AVABOI&:tiitt SOCIAUSECURITYffgett; Cable/Sat TV O 153 Recovery of Overpayment Liability PERSONAL PROPERTY Fair Labor Standards HIA (1395ff) Securities/Commodities/ of Veteran's Benefits Motor Vehicle Other Fraud Act Black Lung (923) Exchange O 160 Stockholders' Suits Motor Vehicle Truth in Lending Labor/Management DIWC/DIWW (405(g)) Other Statutory Actions O 190 Other Contract Product Liability Other Personal Relations SSID Title VI Agricultural Acts O 195 Contract Product Liability Other Personal Property Damage Railway Labor Act RS1 (405(g)) Environmental Matters O 196 Franchise Injury Property Damage Family and Medical Freedom ofinformation Act Personal Injury Product Liability Leave Act Medical Other Labor Arbitration Malpractice Litigation I.PWAREAHPROPERTY, k4,-.5.-zigiviti1ughtser.wi PRISONERTETITIONS= Employee Retirement ;;;SKT-TEDERAL,TASUITSW Administrative Procedure Land Condemnation Other Civil Rights Habeas Corpus: Income Security Act Taxes (U.S. Plaintiff Act/Review or Appeal of or Foreclosure Voting Alien Detainee Defendant) Agency Decision Rent Lease & Ejectment Employment Motions to Vacate RS Third Party Constitutionality of 26 USC 7609 State Statutes Torts to Land Housing/ Sentence Tort Product Liability Accommodations General All Other Real Property Amer, w/disabilities Death Penalty.ry;t4.,I;:fi1INIMIGRATION41:7A Employment Other: Naturalization Application Amer. w/disabilities Mandamus & Other Other Immigration Other Civil Rights Actions Education Prison Condition Civil Detainee Conditions of Confinement NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (If Known) II. BASIS OF JURISDICTION (Place an "" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "" in One Boxfor Plaint(f (For Diversity Cases and One Only) Boxfor Defendant) O 1 U.S. Government 0 PIE DEE PTE DEE 3 Federal Question Plaintiff U.S. Government Not a Party) Citizen ofthis State Incorporated or Principal Place 0 4 (8( 4 of Business In This State O 2 U.S. Government Fl 4 Diversity Defendant (Indicate Citizenship ofparties in Item III) Citizen of Another State tg Incorporated and Principal Place ofbusiness In Another State V. ORIGIN (Place an "" in One Box Only) S:( 1 Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict Proceeding State Court Appellate Court Reopened Another District Litigation (specify) Cite the U.S. Civil Statute under which you are filing (Do not citejurisdictional statutes unless diversi09: 28 U.S.C VI. CAUSE OF ACTION Brief description of cause: Health Care/Pharmaceutical Personal Injury Product Liability VII. REQUESTED IN 0 CHECK IF THIS IS A CLASS ACTION DEMAND CHECK YES only if demanded in complaint: UNDER RULE COMPLAINT: 23, F.R.Cv.P. 75, JURY DEMAND: A Yes 0 No VIII. RELATED CASE(S) (See insiructions): IF ANY JUDGE Hon. Joan N. Ericksen DOCKET NUMBER MDL DATE SIGNATURE OF ATTORNEY OF RECORD 06/12/2017 Is/ Genevieve M. Zimmerman FOR OFFICE USE ONLY RECEIPT 6 AMOUNT APPLYING IFP JUDGE MAG. JUDGE