v. - aboutlawsuits-wpengine.netdna-ssl.com filethe state of california and defendant gyrus acmi, lp...

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Robert L. Clarkson, Bar No. 102183 Michael J. Riley, Bar No. 170006 CLARKSON/RILEY, LLP 1880 Century Park East, 12th Floor Los Angeles, California 90067 (310) 552-0050/FAX (310) 552-0060 [email protected] [email protected]

Attorneys for Plaintiffs LISA NIELSEN and KURT NIELSEN

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

LISA NIELSEN, and KURT NIELSEN

Plaintiffs,

v.

GYRUS ACMI, LP, a Minnesota Limited Partnership; GYRUS ACMI, LLC, a Minnesota Limited Liability Company; and DOES 1-50,

Defendants.

Case No.:

COMPLAINT FOR:

1 . NEGLIGENCE 2. STRICT PRODUCTS LIABILITY 3. BREACH OF EXPRESS WARRANTY 4. BREACH OF IMPLIED WARRANTY 5. FRAUD 6. LOSS OF SERVICES

JURY TRIAL IS REQUESTED

Plaintiffs LISA NIELSEN and KURT NIELSEN, complaining ofthe defendants and

seeking a trial by jury of their claims, allege as follows:

I. INTRODUCTION

1. This action is being brought for injuries and damages caused to plaintiffs from the

use of a product known as a power morcellator in. connection with a hysterectomy on plaintiff

LISA NIELSEN that was manufactured, sold and distributed by GYRUS ACMI, LP, GYRUS

ACMI, LLC and as Does 1 though 50.

2. Plaintiff LISA NIELSEN had a surgical procedure known as a hysterectomy

("uterine morcellation") assisted by the use of a GYRUS ACMI, LP bipolar morcellator ("Gyrus

Power Morcellator").

- 1 COMPLAINT

Case 2:14-cv-02375-GEB-DAD Document 1 Filed 10/09/14 of 12

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II. JURISDICTION AND VENUE

3. This Court has original jurisdiction pursuant to 28 U.S.C. § 1332, as the matter in

controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between

citizens ofdifferent states as plaintiffs LISA NIELSEN and KURT NIELSEN are residents of

the state of California and defendant GYRUS ACMI, LP is a limited partnership domiciled in the

State of Minnesota and GYRUS ACMI, LLC is a limited liability company domiciled in the

State of Delaware.

4. Venue in the Eastern District of California is proper under 28 U.S.C. §1391(b)(2)

as a substantial part of the events or omissions giving rise to the claim occurred in this District.

III. PARTIES

5. Plaintiffs LISA NIELSEN and KURT NIELSEN are adult individuals residing in

the city of Grass Valley, State of California.

6. Defendant GYRUS ACMI, LP is a Limited Partnership, organized and existing

under the laws of the state of Minnesota, and at all times material and relevant hereto, was

engaged in the business of designing, manufacturing, selling, supplying, distributing and

marketing minimally invasive gynecological surgical products, including the Gyrus Power

Morcellator. Defendant GYRUS ACMI, LLC is the general partner of GYRUS ACMI, LP.

7. Plaintiffs do not know the names and capacities, whether corporate, associate, or

individual of defendants sued herein as DOES 1 through 50, inclusive, and therefore they sue

these defendants by such fictitious names.

8. Plaintiffs are informed and believe, and thereon allege, that each of the fictitiously

named DOE defendants is legally responsible in some manner for the wrongful events and

occurrences herein alledged, and each of them was in some manner legally responsible for

causing the injuries and damages to plaintiffs as described in this complaint. Plaintiffs will seek

leave to amend this complaint to allege the true names and capacities of these Doe defendants

when such information has been ascertained.

9. Plaintiffs are informed and believe, and thereon allege, that at all times herein

- 2 COMPLAINT


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mentioned, each of the defendants, whether specifically named or designated in this Complaint

as a DOE defendant, was the agent, representative, joint-venture, co-conspirator, consultant,

predecessor, successor, servant, or employee of each of the remaining defendants, and in doing

the acts alleged herein, was acting in the course and scope of such agency, representation, joint

venture, conspiracy, consultancy, predecessor agreement, successor agreement, service and

employment with knowledge, acquiescence and ratification of each and every remaining

defendant.

10. Defendants DOES 1 through 50, inclusive, were engaged in the business of

manufacturing and/or selling and/or supplying and/or marketing and/or designing and/or

distributing minimally invasive gynecological surgical products, specifically, the product(s) used

upon Plaintiff LISA NIELSEN.

IV. BACKGROUND AND FACTS

11. Paragraphs 1 through 10 are incorporated by this reference into this cause of

action as if they were set forth in full.

12. Plaintiff LISA NIELSEN underwent a surgical procedure known as a

hysterectomy during which surgery the Gyrus Power Morcellator was used. This surgery took

place in the city of Carmichael, California.

13. Prior to plaintiff LISA NIELSEN's surgery, she was unaware that she had

cancer.

14. More than a year after the procedure, Plaintiff found out that she had seven

cancerous in her abdomen. She thereafter underwent additional surgeries and chemotherapy, and

continues to be actively monitored for new tumors.

15. Within the last two years, Plaintiff LISA NIELSEN learned that the tumors in her

abdominal existed because the Gyrus Power Morcellator had been used during her hysterectomy.

That surgery disseminated the cancer cells that were in her uterine fibroids, and that such

dissemination could lead to metastatic disease at more locations.

16. Plaintiff LISA NIELSEN was never warned prior to her hysterectomy that there

- 3 COMPLAINT


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was any chance that the "fibroids" could be cancerous, nor that using the Gyrus Power

Morcellerator in the hysterectomy brought any chance of spreading cancer.

17. It is alleged that each and every defendant herein failed to warn that the use of the

Gyrus Power Morcellerator increased the possibility of dissemination of cancer throughout

Plaintiffs body.

18. Defendants knew or should have known of the risks, complications, andlor

adverse events associated with their products used for uterine morcellation, but continued to sell

them without disclosing the risk involved with the use of their products.

FIRST CAUSE OF ACTION

NEGLEGENCE

19. Plaintiff incorporates paragraphs 1 to 18 herein by this reference.

20. Defendants GYRUS ACMI, LP, GYRUS ACMI, LLC and Does 1 through 50,

inclusive, (hereafter collectively referred to as "Defendants"), owed a duty to design,

manufacture, label, market, distribute, and supply and/or sell a product like the Gyrus Power

Morcellator in such a way as to avoid harm to persons upon whom it was used, including

plaintiff LISA NIELSEN, or to refrain from such activities following knowledge and/or

constructive knowledge that such product is harmful to persons upon whom it is used.

21. Defendants owed a duty to warn of the hazards and dangers associated with the

use of its product the Gyrus Power Morcellator and its associated minimally invasive

gynecological products, for patients such as plaintiff herein, so as to avoid harm.

22. Defendants, acting by and through their authorized divisions, subsidiaries, agents,

servants, and employees, were guilty of carelessness, recklessness, negligence, gross negligence,

and willful, wanton, outrageous and reckless disregard for human life and safety in

manufacturing, designing, labeling, marketing, distributing, supplying andlor selling and/or

placing into the stream of commerce, minimally invasive gynecological products, including the

Gyrus Power Morcellator, both generally, and in the following respects:

a. failing to conduct adequate and appropriate testing of minimally invasive

-4COMPLAINT


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gynecological products, specifically including, but not limited to, products used for uterine

morcellation;

b. putting products used for uterine morcellation on the market without first

conducting adequate testing to determine possible side effects;

c. putting products used for uterine morcellation on the market without

adequate testing of its dangers to humans

d. failing to recognize the significance of their O,",TI and other testing of, and

information regarding, products used for uterine morcellation, which testing evidenced such

products potential harm to humans;

e. failing to respond promptly and appropriately to their OvVll and other

testing of, and information regarding products used for uterine morcellation, which indicated

such products potential harm to humans;

f. failing to promptly and adequately warn of the potential of the products

used for uterine morcellation to be harmful to humans;

g. failing to promptly and adequately warn of the potential for the metastases

of cancer when using products used for uterine morcellation;

h. failing to promptly, adequately, and appropriately recommend testing and

monitoring of patients upon whom products used for uterine morcellation in light of such

products' potential harm to humans;

1. failing to properly, appropriately, and adequately monitor the post-market

performance of products used for uterine morcellation and such products effects on patients;

J. concealing from the FDA, National Institutes of Health, the general

medical community and/or physicians, their full knowledge and experience regarding the

potential that products used for uterine morcellation are harmful to humans;

k. promoting, marketing, advertising and/or selling products used for uterine

morcellation for use on patients given their knowledge and experience of such products'

potential harmful effects;

L failing to withdraw products used for uterine morcellation from the

- 5 COMPLAINT


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market, restrict its use and/or warn of such products' potential dangers, given their knowledge of

the potential for its harm to humans;

m. failing to fulfill the standard of care required of a reasonable, prudent,

minimally invasive gynecological surgical products engaged in the manufacture of said products,

specifically including products used for uterine morcellation;

n. placing and/or pernlitting the placement of the products used for uterine

morcellation into the stream of commerce without warnings of the potential for said products to

be harmful to humans and/or without properly warning of said products' dangerousness;

o. failing to disclose to the medical community in an appropriate and timely

manner, facts relative to the potential of the products used for uterine morcellation to be harmful

to humans;

p. failing to respond or react promptly and appropriately to reports of

products used for uterine morcellation causing haml to patients;

q. disregarding the safety of users and consumers of products used for

uterine morcellation, including plaintiff herein, under the circumstances by failing to adequately

warn of said products' potential harm to humans;

r. disregarding the safety and users and consumers of the products used for

uterine morcellation, including plaintiff herein, and/or her physicians and/or hospital, under the

circumstances by failing to withdraw said products from the market and/or restrict their usage;

s. disregarding publicity, government and/or industry studies, information,

documentation and recommendations, consumer complaints and reports and/or other information

regarding the hazards of the products used for uterine morcellation and their potential harm to

humans;

1. failing to exercise reasonable care in informing physicians and/or hospitals

using the products used for uterine morcellation about their O'A-TI knowledge regarding said

products' potential harm to humans;

u. failing to remove products used for uterine morcellation from the stream

of commerce;

- 6 COMPLAINT


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v. failing to test products used for uterine morcellation properly and/or

adequately so as to determine its safety for use;

w. promoting the products used for uterine morcellation as safe and/or safer

than other comparative methods of lesion removal;

x. promoting the products used for uterine morcellation on websites aimed at

creating user and consumer demand;

y. failing to conduct and/or respond to post-marketing surveillance of

complications and injuries.

z. failing to use due care under the circumstances; and,

aa. such other acts or omissions constituting negligence and carelessness as

may appear during the course of discovery or at the trial of this matter

23. As a direct and proximate result of the negligent and/or recklessness and/or

wanton acts and/or omissions of Defendants, Plaintiff LISA 1\T1ELSEN suffered serious physical

injury, pain and suffering and severe mental and emotional distress and economic loss and harm.

WHEREFORE, Plaintiffs pray for relief as set forth below.

SECOND CAUSE OF ACTION

STRICT PRODUCTS LIABILITY

24. Plaintiff incorporates Paragraphs 1 to 23 above as though fully set forth herein.

25. As a result of the unreasonably dangerous and defective condition of the products

used for uterine morcellation, including the Gyrus Power Morcellator, which Defendants

manufactured, designed, labeled, marketed, distributed, supplied and/or sold, and/or placed into

the stream of commerce, they are strictly liable to the Plaintiff LISA NIEL,SEN for her injuries

which they directly and proximately caused, based on the following:

a. failing to properly and adequately design the products used for uterine

morcellation,

b. failing to properly and adequately manufacture the products used for

uterine morcellation; and,

- 7 COMPLAINT


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c. such other defects as shall be revealed in the course of discovery.

26. In addition, the aforesaid incident and Plaintiff LISA NIELSEN's injuries and

losses were the direct and proximate result of the use the Gyrus Power Morcellerator in the way

in which it was intended. Defendants manufactued, designed, labeled, marketed, distributed,

supplied, sold and/or placed into the stream of commerce the products to be used for uterine

morcellation, without proper and adequate warnings regarding the potential for said products'

harm to humans and as othef\vise set forth supra, when said Defendants knew or should have

known of the need for such warnings and/or recommendations.

WHEREFORE, Plaintiff prays for relief as set forth below.

THIRD CAuSE OF ACTION

BREACH OF EXPRESS WARRANTY



28. In advertising and marketing of the products used for uterine morcellation, which

was directed to both physicians and hospitals and consumers, Defendants warranted that said

product or products were safe to use, which had the natural tendency to induce physicians and

hospitals to use the same for patients and for patients to want to be treated with the same.

29. The aforesaid warranties were breached by Defendants in that the products used

for uterine morcellation constituted a serious danger to user.

30. As a direct and proximate result of the negligent and/or reckless and/or wanton

acts and/or omissions of Defendants, plaintiff suffered serious physical injury, pain and suffering

and severe mental and emotional distress and economic loss and harm.


FOURTH CAUSE OF ACTION

BREACH OF IMPLIED WARRANTY


- 8 COMPLAINT


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32. At all relevant and material times, Defendants manufactured, distributed,

advertised, promoted, and sold the foregoing products used for uterine morcellation.

33. At all relevant times, Defendants intended that the products used for uterine

morcellation be used in the manner that the Plaintiff s surgeons in fact used it and Defendants

impliedly warranted that product to be ofmerchantable quality, safe and fit for such use, and was

adequately tested.

34. Defendants breached various implied warranties with respect to the products used

for uterine morcellation, including:

a. Defendants represented through their labeling, advertising, marketing

materials, detail persons, seminar presentations, publications, notice letters, and regulatory

submissions that the products used for uterine morcellation were safe, and withheld and

concealed information about the substantial risks of serious injury andlor death associated with

using the products used for uterine morcellation;

b. Defendants represented that the products used for uterine morcellation

were as safe andlor safer than the alternative surgical approaches that did not include the use of

the said products, and concealed information, which demonstrated that said products were not

safer than alternatives available on the market; and,

c. Defendants represented that the products used for uterine morcellation

were more efficacious than other alternative surgical approaches and techniques and concealed

information, regarding the true efficacy of said products.

35. In reliance upon defendants' implied wananty, Plaintiffs surgeons used said

products as prescribed and in the foreseeable manner normally intended, recommended,

promoted, instructed, and marketed by Defendant.

36. Defendants breached their implied warranty to Plaintiff in that said products used

for uterine morcellation were not of merchantable quality, safe and fit for their intended use, or

adequately tested.

37. As a direct and proximate result of the negligent andlor reckless and/or wanton

- 9 COMPLAINT


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act andlor omissions of Defendants, plaintiff suffered serious physical injury, pain, and suffering

and severe mental and emotional distress and economic loss and harm.


FIFTH CAUSE OF ACTION

FRAUDULENT MISREPRESENTATION AND OMISSION

38. Plaintiff incorporates by this reference, as if fully set forth herein, each and every

allegation set forth in the preceding paragraphs.

39. Defendants, having undertaken the design, formulation, testing, manufacture,

marketing, sale, and distribution of devices used for uterine morcellation owed a duty to provide

accurate and complete information regarding said devices.

40. Prior to Plaintiff LISA NIELSEN undergoing her surgery, Defendants

fraudulently misrepresented, that the use of their device for uterine morcellation was safe and

effective.

41. Defendants had a duty to provide plaintiff LISA NIELSEN, physicians, and other

customers with true and accurate information regarding the devices for uterine morcellation it

manufactured, marketed, distributed and sold.

42. Defendants made representations and failed to disclose material facts with the

intent to induce consumers, including plaintiff, LISA NIELSEN, and the medical community to

act in reliance by purchasing and using the uterine morcellation sold by defendant.

43. Plaintiff LISA NIELSEN justifiably relied on her medical provider's use of the

Gyrus Power Morcellator during plaintiff's hysterectomy due to Defendants' representations and

omIssIOns.

44. Defendants' representations and omissions regarding use of its uterine

morcellation devices were a direct and proximate cause of plaintiff's injuries. Plaintiff did not

discover Defendants' fraud until a date within the last three vears. ~

45. As a direct and proximate result of the fraud of Defendants, plaintiff suffered

serious physical injury, pain and suffering and severe mental and emotional distress and

- 10 COMPLA1NT


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economic loss and harm.

46. Because of Defendants' fraud as described herein, plaintiff is entitled to an award

of punitive damages against Defendants.


SIXTH CAUSE OF ACTION

LOSS OF SERVICES



48. Plaintiff, KURT NIELSEN is the spouse of plaintiff LISA NIELSEN and as such

is entitled to the services, society, companionship, consortium and support of the plaintiff LISA

NIELSEN.

49. By reason of the foregoing acts and omission by the defendants, plaintiff KURT

NIELSEN, was deprived ofthe services, society, companionship, consortium, and support of

plaintiff, LISA NIELSEN.

III

III

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III

III

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WHEREFORE, Plaintiffs pray for relief as follows:

a. Compensatory damages in excess of the jurisdictional amount, including, but not

limited to pain, suffering, emotional distress, loss of enjoyment of life, loss of

services, consortium, society and other non-economic damages in the amount of

$5,000,000.00;

b. Economic damages in an amount to be determined at trial of this action;

c. Double or triple damages as allowed by law;

d. Restitution and disgorgement of profits;

e. Reasonable attorneys' fees

f. Punitive damages;

g. The costs of these proceedings;

h. Prejudgment interest; and

1. Such other and further relief as this Court deems just and proper

CLARKSONIRILEY, LLP

L. Clarkson DATED: September 19.2014

Michael J. Riley Attorneys for Plaintiffs

- 12 COMPLAINT


JS 44 (Rey. 12/12) CIVIL COVER SHEET The IS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except as proVIded by local rules of court 1111S form, approved by the JUdicial Conference ofthe United States in September 1974, is required for the use of the Clerk of Court for the purpose of inilIating the civil docket sheet (SEE INSTRUCTIONS ON NEAT PAGE OF THIS FORM)

I. (a) PLAINTIFFS Lisa Nielsen and Kurt Nielsen

(b) County of Residence of First Listed Plaintiff l\teYiLd~

(EXI:Ef'T IN US. PLAllvl1FF CASES)

(c) Attorneys (Firm Name, Address, and Telephone Number)

Clarkson Riley LLP 1880 Century Park East, 12th Floor Los Angeles, CA 90067

DEFENDANTS GYRUS ACMI, LP, a Minnesota Limited Partnership; GYRUS ACMI, LLC, a Minnesota Limited Liability Company; and DOES 1-50

County of Residence of First Listed Defendant Pllliia",C",e:Lr___...~_~._ (IN U.S. PLAINl1FF LASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRA.CT OF LAND INVOLVED.

Attorneys (IfKnown)

II. BASIS OF JURISDICTION mace an "){"inOneBoxOnly)

o 1 U.S. Government

Plaintiff

o 2 U.S. Government Defendant

o 3 Federal Question

(US Government Not a Farly)

~ 4 Diversity (lndicate Citizemhip 0/Parlies in Item III)

III. CITIZENSHIP OF PRINCIPALPARTIES (Place an "X' in One Box/or Plaintiff (For Diversily Cases Onl)} and Ol1e Box/or Defendant)

PTF DEF PTF DEF

Citizen of This State O!: 1 0 I Incorporated or Principal PI.ce 0 4 0 4 ofBusiness In This State

Citizen ofAnother State o 2 0 2 [ncOlporated and PnndI'.1 Place o of Bus mess lu Another State

o 3 0 3 Foreign Nation o 6 06

IV NATURE OF SUIT (Plocean "){" a Box Ol~In ne nl)j

L rONTRAC TORTS FLIRt!!;!]! 'I<ElPENAL Y BANKRUPT Y OTHERSTATI1TES

o 110 Insurance PERSONAL INJURY PERSONAL INJlJRY o 625 Drug Related Seizure o 422 Appeal2S USC 158 0 375 False Claims Act o 120M.tine o 310 Aill'laue o 365 Personal Injury - ofProperty 21 USC 881 o 423 Withdrawal 0 400 State ReapportlOrunent o 130 Miller Act o 315 Aitplane Product Product Liability 0690 Other 28 USC 157 o 410 Antitrust '] 140 Negotiable fustrument Liability Jl:I 367 Health Care! o 430 Banks and Banking o 150 Recovery of Overpayment o 320 Assault, Libel & Phannaceutical PR PER Y KttiH n, o 450 Conunerce

& Enforcement of Judgment Slander Personal Injury o S20 Copyrights o 460 DepOltation LI 151 Medicare Act o 330 Federal Employers' Product Liability o 830 Patent o 470 Racketeer Influenced and '] 152 Recovery ofDefaulted Liability '] 368 Asbestos Personal o 840 Trademark Conupt Organizations

Student Loans 0340 Marine fujury Product 0 480 Consumer Credit (Excludes Veterans) o 345 Marine Product Liability ~AB{}R SOt. IAJ , Sl;CUREY '] 490 CableiSal TV

0 153 Recovery ofOverpayment Liability PERSONAL PROPERTY o 710 Fair Labor Standards o 861 HIA (1395fl) 0 850 Securities/Commoditiesl afVeteran's Benefits o 350 Motor Vehicle o 370 Other Fraud Act o 862 Black Lung (923) Exchange

0 160 Stockholders' Suits o 355 Motor Vehicle o 371 Truth in Lending o 720 LaborfManagement o 863 DlWClDlWW (405(g)) 0 890 Other Statutory Actions '] 190 Other Contract Product Liability :J 380 Other Personal Relations o 864 SSID Title XVI 0 891 Agricultural Acts o 195 Contnlcl Product Liability o 360 Other Personal Property Damage o 740 Railway Labor Act o 865 RSI (405(g)) 0 893 Enviroumental Matters o 196 Franchise Injury :J 385 Property Damage o 751 Family and Medical 0 895 Freedom of Information

o 362 Personal Injury Product Liability Leave Act Act Medical Malpractice o 790 Other Labor Litigation 0 896 Arbitration

REAL PROPERTY CIVIL RIGlITS PRISONER PETmONS 0791 Employee Retirement FEDERAL TAX SUITS 0 899 Administrative Procedure

o 210 Land Condemnation o 440 Other Civil Rights Habeas Corpus: Income Sec1II1ty Act o 870 Taxes (US. Plaintiff Act/Review or Appeal of o 220 Foreclosure 0441 Voting o 463 Alien Detainee or Defendant) Agency Decision o 230 Rent Lease & Ejectment '] 442 Employment o 5 j 0 Motions to Vacate o 871 IRS-Third Party 0 950 Constitutionality of o 240 Torts to Land o 443 Housing! Sentence 26 USC 7609 State Statutes o 245 Tort Product Liability Accommodations o 530 General o 290 All Other Real Property o 445 Amer. wlDisabilities • o 535 Death Penalty IMMIGRATION

Employment Other: o 462 Naturalization Application o 446 Anler. w!Disabilities o 540 Mandamus & Other o 465 Other Immigration

Other o 550 Civil Rights ActIOns o 448 Education o 555 Prison Condition

o 560 Civil Detainee Conditions of Confinement

V. ORIGIN (Flacean "){"inOl1eBox()nM

)!it 1 Original 0 2 Removed from :J 3 Remanded from o 4 Reinstated or r'J 5 Transferred from 0 6 Multidlstrict Proceeding State Court Appellate Court Reopened Another District Litigation

(SC!fy)

Cite the lJ.8. Civil Statute under which you are filing (Do not citejurisdictionai statutes unless diversity): 28 USC 1332

VI. CAUSE OF ACTION /-'B;;;"r;;;"ie';:f--'de'-s;;"cr-"ip";;'tI"';;"o~n-of-'c-a-u"-'e-:----------------------------------

Product Liability

VII. REQUESTED IN o CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:

COMPLAINT: UNDER RULE 23, FRCv.P. 5,000,000.00 JURY DEMA~D: :m Yes 0 No

VIII. RELATED CASE(S) IF ANY (See instructions):

JUDGE :-lUMBER

DATE

09/19/2014 FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case 2:14-cv-02375-GEB-DAD Document 1-1 Filed 10/09/14 Page 1 of 1

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