Court dismisses woman's third attempt with suit claiming medical device was faulty

By Elizabeth Alt | Aug 16, 2018

FORT MYERS – The U.S. District Court for the Middle District of Florida recently granted Boston Scientific’s motion to dismiss a lawsuit claiming a medical device created to stop pulmonary embolisms was defectively designed.

U.S. District Judge Sheri Polster Chappell, in a court order filed July 23, said that the plaintiff, Valerie Douse, had not added specific facts in her amended complaint. “Douse has failed to plead a plausible claim after three opportunities.”

Douse originally sued Boston Scientific, maker of the Greenfield Filter, a medical device created to stop pulmonary embolisms, claiming she had the filter inserted after suffering a pulmonary embolism in 2003 on the advice of her doctor to “prevent further blood clot-related issues.” Douse claims that in 2017 she was treated for complications with the filter and was told that the filter “perforated the walls of the vein in which it had been implanted.”

Douse’s first complaint was dismissed; her amended complaint was granted in part, with the court dismissing her claims of fraud and implied warranty of merchantability and fitness.

Douse’s second amended complaint states that the “Greenfield Filter was defectively designed and manufactured,” was inadequately tested and had “inadequate warnings, instructions, and labeling,” The suit alleged Boston Scientific was liable for “negligence, strict liability defective design, strict liability manufacturing defect, strict liability failure to warn, fraudulent misrepresentation, fraudulent concealment and negligent misrepresentation.”

Chappell dismissed Douse’s claim that Boston Scientific fraudulently misrepresented the safety and efficacy of the Greenfield Filter through advertising and promotional materials as well as “statements to Douse’s health care provider.” Stating that the allegations regarding the website did “not pass muster,” Chappell noted that the allegations about the product brochures, labeling and statements failed “to include even the most basic information about the representation.”

The court dismissed Douse’s claims that Boston Scientific “fraudulently concealed material information about the Greenfield Filter’s safety,” noting that Douse has not pleaded any specific facts  even after having her original and amended complaints dismissed for being inadequate.

Chappell said that Douse has not alleged “a single fact that was specifically concealed by Boston Scientific” and that Douse is attempting to cover the “glaring insufficiencies” in the complaint by attempting to plead at a lower standard of particularity.  

“Whether a product is safe is an opinion," the ruling said. "Similarly, whether a product was manufactured negligently is a legal conclusion. Because fraudulent concealment only applies to suppressed facts, rather than opinions or legal conclusions, the allegations are wanting.”

The court granted Boston Scientific’s motion to dismiss the case, dismissing the claims of fraudulent misrepresentation, fraudulent concealment and negligent misrepresentation with prejudice.

U.S. District Court for the Middle District of Florida, Fort. Myers Division, case number 2:17-cv-599-FtM-38MRM

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