Whistleblower Defeats Motion to Dismiss in Lawsuit Alleging Defective Defibrillators
MINNEAPOLIS, Dec. 14, 2017 – Late yesterday, Judge Joan N. Ericksen denied in its entirety Boston Scientific Corporation’s motion to dismiss a whistleblower lawsuit involving allegedly defective cardiac defibrillators. The case will now move into discovery.
The whistleblower’s complaint alleged that Boston Scientific defrauded the United States and the State of California by marketing and selling defibrillators known as Cognis and Teligen, which Boston Scientific knew were defective.
These devices are implanted in patients and are intended to deliver life-saving electric shocks to a patient’s heart in the event of an abnormal heart rhythm. However, the whistleblower’s suit alleges that Cognis and Teligen suffered from serious and potentially fatal defects in their design. The suit further alleges that Boston Scientific knew that the devices were defective to the point of complete malfunction, yet continued to sell them.
Boston Scientific’s motion to dismiss argued that the whistleblower’s complaint did not adequately plead fraud. Yesterday, Judge Ericksen disagreed, finding that the whistleblower “has particularly pled fraud in how Boston Scientific allegedly misled the FDA.”
Dan Miller, a shareholder at Berger & Montague, P.C. and lead counsel for the whistleblower, praised the decision: “As counsel for the whistleblower, we are pleased with Judge Ericksen’s decision. The allegations cannot be more serious, as they involve the sale of tens of thousands of defective defibrillators with potentially fatal consequences. Further, these defibrillators – which ultimately were recalled from the market – allegedly led to a fraud on the government of approximately $1 billion.”
The case, pending in federal court in the District of Minnesota, is captioned U.S. ex rel. Steven Higgins v. Boston Scientific Corporation, C.A. No. 0:11-cv-02453-JNE-SER.