Products Liability Law Reporter

The Delaware Superior Court held that a patient’s design defect and punitive damages claims could proceed against Boston Scientific Corp., the manufacturer of the pelvic mesh device with which she was implanted.

Here, in 2013, Kulwinder Kaur was implanted with the Obtryx Transobturator Mid-Urethral Sling System, manufactured by Boston Scientific Corp. (BSC). She later sued BSC, alleging claims for design defect and punitive damages, among others. The defendant moved for summary judgment.

Denying the motion, the court found that under applicable California law, courts considering negligent design claims must balance the likelihood and gravity of harm from the product against the burden of the precaution necessary to avoid the harm. Under this risk-benefit test, the court added, a jury also may consider the mechanical feasibility of a safer alternative design, the cost of an improved design, and the adverse consequences to the product and the consumer resulting from an alternative design.

The court found that the evidence supported a design defect claim. The court noted that the reports of the plaintiff’s experts outlined the danger posed by the use of non-medical grade polypropylene in permanent medical implants placed in the human body, and one of the experts offered a safer alternative design involving medical-grade polypropylene resin to create the mesh used in the Obtryx. This alternative design was mechanically feasible and available at the time of the plaintiff’s implantation, the court said.

The court also concluded that summary judgment was not warranted on the plaintiff’s punitive damages claim. There exists a genuine issue of material fact about whether the defendant knew that its resin supplier had been hesitant to supply polypropylene resin for implantation into the human body and that the defendant had presented data to physicians and the public on the Obtryx mesh despite knowing that the data was implausible.

Citation: Kaur v. Boston Scientific Corp., 2022 WL 1501088 (Del. Super. Ct. May 11, 2022).

Plaintiff counsel: AAJ member Robert J. Leoni, Wilmington, Del.