Jaggard v. Abbott Cardiovascular Systems Inc

BRIAN MOONEY, ESQ.

2 California Bar No. 143795 (Pro Hac Vice Pending) DIONE C. WRENN, ESQ.

3 Nevada Bar No. 13285 GORDON REES SCULLY MANSUKHANI, LLP 300 So. 4th Street, Suite 1550 Las Vegas, NV 89101 Telephone: (702) 577-9301 Facsimile: (702) 255-2858 Email: [email protected] [email protected] Attorneys for Defendant, Abbott Laboratories 9 UNITED STATES DISTRICT COURT 10 DISTICT OF NEVADA RICHARD JAGGARD and JUDY CASE NO.: 3:21-cv-00360-RCJ-CLB JAGGARD, Plaintiffs, 13 JOINT STIPULATION AND vs. REQUEST FOR LEAVE TO AMEND 14 COMPLAINT ABBOTT LABORATORIES, an entity of unknown corporate form; and DOES 1 through 50, INCLUSIVE, Defendants.

18 Defendant ABBOTT VASCULAR INC. (“Abbott”), erroneously named ABBOTT LABORATORIES, and Plaintiffs RICHARD and JUDY JAGGARD (“Plaintiffs”), by and through their undersigned counsel, hereby submit the following joint stipulation and request for leave for Plaintiffs to file an amended complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure: 23 WHEREAS, on March 15, 2021, Plaintiffs initiated the underlying action in the Second Judicial District Court situated in Washoe County, Nevada.

25 WHEREAS, on July 12, 2021, Plaintiffs’ served Abbott with the summons and complaint. See ECF No. 1-1.

27 WHEREAS, on August 10, 2021, Abbott filed a Petition for Removal to the United 1 WHEREAS, on August 13, 2021, defense counsel informed counsel for Plaintiffs that || Abbott Laboratories was likely not the proper defendant-entity, and on August 18, 2021 ||informed counsel for Plaintiffs that Abbott Cardiovascular Systems Inc. was the owner of the || subject product identified in the Complaint.

5 WHEREAS, the parties stipulate and agree to amend the complaint to add Abbott || Cardiovascular Systems Inc. and to dismiss Abbott Laboratories from the action. The proposed || First Amended Complaint is attached hereto as Exhibit 1.

8 WHEREAS, this stipulation does not constitute a waiver of any disputes, objections, || and defenses Abbott Cardiovascular Systems Inc. may have as to the sufficiency of the claims |] and allegations asserted in Plaintiffs’ First Amended Complaint, which may be asserted in a 4 11 || responsive pleading or by motion pursuant to Rule 12. _ 2 NOW, THEREFORE, IT IS HEREBY STIPULATED by and between parties hereto 325 . . a5 * 13 || through their respective attorneys of records that Plaintiffs may, pursuant to Rule 15(a) of the Zz 14 || Federal Rules of Civil Procedure, file an amended complaint in the form of the First Amended = on = v 2 15 || Complaint attached hereto as Exhibit 1.

16 DATED this 26" day of August 2021 DATED this 26" day of August 2021

& !7 || GORDON REES SCULLY OSHINSKI & FORSBERG, LTD || MANSUKHANI |! 4/ Dione C. Wrenn /s/ Mark Forsberg BRIAN MOONEY, ESQ. MARK FORSBERG, ESQ.

20 || California Bar No. 143795 Nevada Bar No. 4265 (Pro Hac Vice Pending) RICK OSHINSKI, ESQ.

DIONE C. WRENN, ESQ. Nevada Bar No. 4127 || Nevada Bar No. 13285 504 E. Musser St., Suite 302 300 South 4" Street, Suite 1550 Carson City, NV 89701 || Las Vegas, Nevada 89101 Attorneys for Plaintiffs Attorneys for Defendant 25 ORDER 26 IT IS SOOR pee) . (~ (/ A 27 ICE UNITED STATES MAGISTRATE JUDGE DATED: August26, 2021 EXHIBIT 1 EXHIBIT 1 || Mark Forsberg, Esq., NSB 4265 Rick Oshinski, Esq., NSB 4127 OSHINSKI & FORSBERG, LTD. || 504 E. Musser Street, Suite 202 Carson City, NV 89701 T 775-301-4250 | F 775-301-4251 [email protected] [email protected] || Attorneys for Richard and Judy Jaggard UNITED STATES DISTRICT COURT DISTRICT OF NEVADA || RICHARD JAGGARD and JUDY JAGGARD, Case No. 3:21-cv-00360-RCJ-CLB 13 Plaintiffs, vs. ABBOTT CARDIOVASCULAR SYSTEMS || INC., a California corporation, and DOES 1 through 50, inclusive, 18 Defendants. / 20 FIRST AMENDED COMPLAINT 21 FOR DAMAGES AND STRICT PRODUCTS LIABILITY 22 COME NOW Plaintiffs, Richard Jaggard and Judy Ann Jaggard, husband and wife, by a1 || through their attorneys, Mark Forsberg, Esq. and Oshinski & Forsberg, Ltd., and as and for their Fi || Amended Complaint in the above action, allege and aver as follows.

25 GENERAL ALLEGATIONS 26 1. Plaintiff RICHARD JAGGARD (hereinafter “Plaintiff” or “Jaggard”) is an individv || and aresident of Minden, Nevada. He is, and at all times relevant to this action was, married to Plaint || JUDY JAGGARD (hereinafter “Judy”).

4 2. Plaintiff is informed and believes, and thereon alleges, that Defendant ABBOT || CARDIOVASCULAR SYSTEMS INC. (hereinafter “ABBOTT”? is a corporation formed and existi || pursuant to the laws of the State of California. Upon information and belief, ABBOTT is a manufactur of medical devices, including devices used in cardiac intervention and has its headquarters and princit || place of business in California.

6 3. Plaintiffs are informed and believe, and thereon allege, that all times mentioned here: || each of the defendants was the agent, servant, representative or employee of each of the remaini || defendants and, in engaging in certain acts hereinafter alleged, was acting within the course and sco || of said agency, service, representation or employment and materially assisted the other defendan || Plaintiffs are further informed and believe, and thereon allege, that each of the defendants ratified t || acts of the remaining defendants.

42 4. Plaintiffs are ignorant of the true names and capacities whether individual, corpora || associate or otherwise, of defendants sued herein as Does 1 through 50, inclusive, and therefore su 44\| said defendants by such fictitious names. Plaintiffs are informed and believe, and upon su || information and belief, allege that each of the defendants designated herein as a Doe defendant is legal || responsible in some manner for the events and happenings referred to herein and caused the damag proximately thereby to Plaintiffs as hereinafter alleged. Plaintiffs will seek leave of court to amend th 4g || complaint to show the true names and capacities of the defendants designated herein as Does when || identities of the Does have been ascertained.

20 JURISDICTION 4 5. The federal court has jurisdiction under 28 U.S.C. § 1332 as the amount in controver exceeds the value of $75,000, exclusive of interest and costs. Additionally, this action is betwe citizens of different states. Plaintiffs are citizens of Nevada and Defendant is believed to be a citiz of California.

25 VENUE 26 6. A civil action may be brought in this, the District of Nevada pursuant to 28 U.S.C 391(b)(2), because a substantial part of the events or omissions giving rise to these claims occurred this District, and in the unofficial Northern District.

1 STATEMENT OF FACTS 2 Ts Plaintiff RICHARD JAGGARD was, at times relevant to this action, an active 65-yee || old man with a prior history of coronary stenting more than a decade earlier, who presented to the □ Mary’s Regional Medical Center (““SMRMC”) emergency department on March 13, 2017, □□□□□□□□□□ 5|| of a significant reduction in his tolerance of exercise over the previous two or three weeks, ja || discomfort during exercise and reporting that the symptoms had progressed. He was accompanied | || JUDY. gil. 8. Medical providers at SMRMC ordered a myocardial profusion study which revealed || small-to-medium sized area of basilar inferior wall ischemia.

10 9, JAGGARD was admitted to the hospital. On March 15, 2017, Devang Desai, M.

11 || (‘Desai”), the SMRMC Chief of Interventional Cardiology, performed procedures on JAGGAR || including right coronary cineangiography, left main coronary artery cineangiography, and t || placement of two stents in those blood vessels. The stents were placed in the coronary blood vess¢ || using a series of wires inserted at the right radial artery. Dr. Desai used a 190-centimeter cardi || interventional wire, model 1001780, manufactured by ABBOTT (the “BMW wire”), in the performan || of the procedure on JAGGARD. Desai referred to this wire as the “BMW wire” in his operative not || and the procedure monitor also identified the wire using this nomenclature.

18 10. After placing stents, Desai removed the BMW wire that had been inserted during t procedure. Desai stated in his operative notes that the tip of the BMW wire “marker” had “stripped « || the wire into a septal perforator of mid LAD.” Dr. Desai noted that he checked the wire □□□ (incorrectly) concluded that the rest of the wire was intact. Dr. Desai finished the procedure and not that JAGGARD tolerated the procedure well and without complications.

23 11. Notwithstanding Desai’s statement the BMW wire appeared intact, a substantial leng of a coil located at the distal tip of the BMW wire remained in JAGGARD’s coronary blood □□□□□ and eventually uncoiled and extended into his right common carotid artery. The length of the wire | in Plaintiff's coronary and carotid blood vessels was 15-30 centimeters long (as determined by two la procedures JAGGARD underwent to remove the wire).

28 12. | JAGGARD was discharged to his home in Minden, Nevada where over the next 14 da || he continued to suffer the same symptoms that resulted in his emergency department visit of March | 2017. He returned to the SMRMC emergency department on March 27, 2017, again accompanied □ JUDY. At this time he was seen by Sridevi Challapalli, M.D., identified by SMRMC as the Direct 4|| of Outpatient Cardiology and Nuclear Cardiology. Dr. Challapalli ordered a repeat cardi || catherization scheduled for the morning of March 28, 2017.

6 13. On March 28, 2017, Frank Carrea, M.D., another interventional cardiologist at SMRM || performed the cardiac catherization on Plaintiff. During the coronary and left ventric g || cineangiography, Dr. Carrea identified the retained strand of the BMW wire, which he report g || “appeared to be much smaller than the usual 0.14 thickness of a guide wire.” He reported that t || retained strand of guide wire terminated with a radiopaque marker in a septal perforator. He observ || the BMW wire extending “through the proximal LAD, left main, ascending aorta and out into t 42|| innominate and up into the right common carotid artery.” Dr. Carrea carried out a procedure in whi || he attempted to “snare” the retained wire. During this procedure, he twice was able to “grab” the w but each time when he pulled on the BMW wire fragment, the wire broke. Dr. Carrea removed ty || segments of wire, which when straightened appeared to be 34 inches long. Dr. Carrea, in consultati || with Mark McAllister, M.D., a radiologist, decided to stop the procedure because of the “fairly lo || period of fluoroscopy” performed on JAGGARD. Dr. Carrea’s report indicates that JAGGARD wv 4g || under conscious sedation for 132 minutes during this procedure. Dr. Carrea noted in his report | 4g || intent to consult with a cardiac surgeon to determine whether surgical removal of the guide wire wot || be necessary.

2 14. Dr. Carrea referred JAGGARD to Athan Roumanas, M.D., a cardiac heart surgeon, w Plaintiffs are informed and believe, is affiliated with Reno Heart Surgeons. The reason for | consultation was consideration of coronary artery bypass grafting and removal of the retained gui wire.

25 15. | Dr. Roumanas recommended coronary artery bypass grafting to treat two additio: blocked coronary arteries, with an attempt at removing the retained piece of wire, noting that it mi not be possible to remove the wire, which was caught in the proximal left anterior descending art stent.

1 16. Dr. Roumanas also opined that another option would be to simply observe JAGGAR and keep him anticoagulated. Dr. Carrea, on the other hand, identified in his notes the risk of wir || related thrombosis if the wire were left in place.

4 17. | JAGGARD requested a second opinion. At the recommendation of Dr. Challapal || JAGGARD was referred to an interventional cardiologist at University of California-Davis Medic || Center (“UC-Davis”) who was believed to be willing to make an additional attempt to remove t || retained portion of the guide wire.

8 18. By this time, JAGGARD’s condition had deteriorated such that he could barely we g || across the room to use the bathroom due to the severity of his symptoms. Plaintiff and JUDY decid || that because of his declining condition and their fears that he might not survive, they would conte their two children, Jennifer and James. Both children travelled to UC-Davis to be with their fatk || during any procedure that was to be conducted at UC-Davis. JUDY feared for JAGGARD’s life.

43 19. Plaintiff was discharged by air ambulance to UC-Davis for further treatment.

14 20. Plaintiff was admitted to the UC-Davis Medical Center on March 31, 2017.

15 21. At UC-Davis Medical Center, Plaintiff was under the care of Jason H. Rogers, M.1 || and Jeffrey Allen Southard, M.D., who are listed in the hospital records as specializing in cardiolog || On April 1, 2017, Dr. Rogers performed a coronary catherization of JAGGARD.

18 22. Dr. Rogers was able to retrieve the remaining retained portion of the BMW wire | || using “a torque device to wrap the two BMW guide wires around the dislodged guide wire □□□□□□ || and were successfully able to pull the wires back into the guide and retrieve the guide wire fragme || with no evidence of perforation or dissection.”

22 23. Additionally, the cardiologist performed sequential rotational atherectomy, placing t additional stents in Plaintiff's coronary arteries to resolve the blockages that were left untreated SMRMC. The cardiologist noted that a tiny distal fragment of the guide wire remained in □□□□□□ after the procedure.

26 24. Between March 16 and March 27, 2017, JAGGARD suffered severe pain, anxie stress, and emotional distress resulting from his continued symptoms of blocked coronary arteri Moreover, after learning of the retained guide wire, Plaintiff and JUDY feared that the retained gui || wire could result in his imminent death or the long-term inability to enjoy the quality of life he enjoys prior to his March 13, 2017 presentation at the SMRMC emergency department and treatment by L || Desai.

4 25. Plaintiff and JUDY continued to suffer severe anxiety, stress and emotional distress ov || concern of his prognosis after it was determined that the guide wire section had been left in his corona || arteries by Dr. Desai and after efforts to remove it were only partially successful and coronary bypa || surgery was recommended.

8 26. JAGGARD suffered great distress during periods of wakefulness during the corona g || catherization performed at UC-Davis when he would endure periods of conscious wakefulness duri: || the procedure, each time fearing that he was dying.

44 27. Through the date of the filing of this complaint, Plaintiff and JUDY continue to suff fear and anxiety regarding JAGGARD’s condition, concern over JAGGARD’s past and future medic || care regarding the procedures he has undergone, and have lost substantially the quality of life th 44|| enjoyed prior to JAGGARD’s treatment by Dr. Desai, as well as concern over the possit || consequences of the fragment of the guide wire that remained in JAGGARD’s body after most of it w || temoved at UC-Davis. □ 17 FIRST CLAIM FOR RELIEF 18 (Negligence) 19 28. Plaintiffs incorporate by this reference each and every allegation of their Gener Allegations and Statement of Fact into this, their First Claim for Relief, as if fully set forth herein.

24 29. Plaintiffs, RICHARD JAGGARD and JUDY JAGGARD, are individuals and are no and at all times mentioned in this complaint were, residents of Douglas County, Nevada.

23 30. Defendant ABBOTT is now, and at all times mentioned in this First Amended Compla || was, a corporation formed, organized and existing under the laws of the State of California, with principal place of business in the State of California.

26 31. Defendant ABBOTT is now, and at all times mentioned in this complaint was, in t business of designing, manufacturing, constructing, assembling, inspecting and selling various types devices used in cardiac intervention, including the BMW wire used in the treatment of JAGGARD.

1 32. JAGGARD is informed and believes that SMRMC purchased the BMW wire fro || ABBOTT and alleges that Dr. Desai inserted into JAGGARD’s blood vessels the BMW wire that hi || been designed, manufactured, constructed, assembled, inspected, and sold by ABBOTT.

4 33. On March 13, 2017, the BMW wire manufactured by ABBOTT malfunctioned, in th || a portion of it broke off in JAGGARD’s coronary arteries causing the injuries and damages describ || herein.

7 34. At all times mentioned in this complaint, Defendant ABBOTT so negligently a1 || carelessly designed, manufactured, constructed, assembled, inspected, and sold the BMW wire that || was dangerous and unsafe for its intended uses.

10 35. Asa direct and proximate result of the negligence and carelessness of ABBOTT described above, Plaintiff JAGGARD suffered great physical pain and JAGGARD and JUDY suffer 42|| great resultant emotional distress and loss of quality of life.

13 36. As a direct and proximate result of the acts and omissions of ABBOTT, Plaintif || RICHARD JAGGARD and JUDY JAGGARD have been damaged in a sum in excess of $75,000 a1 || have been forced to engage legal counsel to prosecute this action.

16 37. Wherefore, judgment is prayed as hereinafter set forth.

17 SECOND CLAIM FOR RELIEF 48 (Strict Products Liability) 19 38. Plaintiffs incorporate by this reference each and every allegation of their Gener Allegations, Statement of Fact and First Claim for Relief into this, their Second Claim for Relief, as fully set forth herein.

22 39. At all times mentioned in this complaint, the BMW wire made by ABBOTT and ; || Component parts were defective as to design, manufacture, and warnings, causing the BMW wire a its component parts to be in a dangerous and defective condition that made it unsafe for its intend || Use: 26 40. The BMW wire was used to treat JAGGARD for the purpose and in a manner reasonab foreseeable by ABBOTT.

1 41. | The BMW wire was dangerous in that failed to perform in the manner reasonably to | || expected in light of its nature and intended function.

3 42. Asadirect and proximate result of the defective and dangerous condition of the BM || wire described above, the BMW wire failed and JAGGARD endured great physical pain and □□□□□□□□ || and JAGGARD and JUDY suffered great emotional distress.

6 43. As a direct and proximate result of the acts and omissions of ABBOTT, □□□□□□□ || RICHARD JAGGARD and JUDY JAGGARD have been damaged in a sum in excess of $75,000 a || have been forced to engage legal counsel to prosecute this action.

9 44, Wherefore, judgment is prayed as hereinafter set forth.

10 WHEREFORE, Plaintiffs pray for judgment as follows: 11 1. For an award of damages to be determined at trial; 42 2. For an award of special damages to be determined at trial; 13 3. For prejudgment interest according to law to be determined at trial; 14 4. For costs of suit and attorney’s fees incurred herein; and 45 5. For such other and further relief as this Court deems just in the premises.

17 Dated , 2021. OSHINSKI & FORSBERG, LTD. 19 By: Mark Forsberg, Esq., NSB 4265 20 Attorneys for Richard and Judy Jaggara