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`Case 2:21-cv-01563 Document1 Filed 11/18/21 Page 1 of 8
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`
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`JOYCE KENNEDY, NO.
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`Plaintiff,
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`COMPLAINT AND DEMAND FOR JURY TRIAL
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`
`
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`ENDO-SURGERY,LLC.,
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`Defendants.
`
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` ETHICON ENDO-SURGERY,INC.; ETHICON
`
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`COMPLAINT AND DEMANDFORJURYTRIAL - 1
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`DIAMONDMASSONG, PLLC
`1215 Fourth Avenue, Suite 1275
`Seattle, WA 98161
`206.445.1258 Phone * 206.445.1257 Fax
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`COMES NOWthe Plaintiff, Joyce Kennedy, and brings this complaint for damagesagainst
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`Defendants, and in support thereof states as follows:
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`1.1.
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`At all times material, Plaintiff Joyce Kennedy was and is an individual residing in
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`1.
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`THE PARTIES
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`the State of Washington.
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`1.2
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`At all times material, Defendant Ethicon Endo-Surgery, Inc., was and is an Ohio
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`corporationwithits principal place of business at 4545 Creek Road, Mail Location 11, Cincinnati,
`Ohio 45242. At all times material, Defendant Ethicon Endo-Surgery, Inc., has been conducting
`business throughout
`the State of Washington and maintains significant, systematic and
`continuous contacts throughout the State of Washington, but does not appear to have a
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`Case 2:21-cv-01563 Document 1 Filed 11/18/21 Page 1 of 8
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`Case 2:21-cv-01563 Document 1 Filed 11/18/21 Page 2 of 8
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`designated agent within the state upon whom service of process may be had for causesof action
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`arising out of such business.
`1.3
`At all times material, Defendant Ethicon Endo-Surgery, LLC, was and is a foreign
`corporation withits principal place of businessat 475 Calle C, Guaynabo, Puerto Rico 00969. At
`all
`times material, Defendant Ethicon Endo-Surgery, LLC, has been conducting business
`throughout the State of Washington and maintains significant, systematic and continuous
`contacts throughout the State of Washington, but does not appear to have a designated agent
`within the state upon whom service of process may be had for causes of action arising out of
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`such business.
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`Hl.
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`JURISDICTION AND VENUE
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`The Court has jurisdiction over this civil action pursuant to 28 U.S.C. § 1332(a),
`2.1.
`inasmuch as the amountin controversy exceeds $75,000, exclusive of interest and costs, and
`Plaintiff is a citizen of a different state than one or more of Defendants.
`2.2
`Venuein this district for pretrial proceedingsin this civil action is proper under28
`U.S.C. § 1391, inasmuch as a substantial part of the events or omissionsgiving rise to the claim
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`occurredin this district.
`Inc. has been in the
`2.3
`At all times material, Defendant Ethicon Endo-Surgery,
`business of the researching, developing,selling, and marketing of surgical staplers and staples.
`At all times material, Defendant Ethicon Endo-Surgery,Inc. has beenin the business of and did
`design, research, manufacture,test, advertise, promote, market, sell, and distribute the surgical
`stapler and staples that constitute the basis of this lawsuit in the State of Washington. This Court
`has personal jurisdiction over Defendant Ethicon Endo-Surgery, Inc. because Defendant has
`submitted itself to the jurisdiction of this Court by engaging in conduct
`in the State of
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`Washingtonasset forth in this Complaint.
`2.4
`At all times material, Defendant Ethicon Endo-Surgery, LLC has been in the
`business of the researching, developing,selling, and marketing of surgical staplers and staples.
`At all times material, Defendant Ethicon Endo-Surgery, LLC has been in the business of and did
`
`COMPLAINT AND DEMANDFORJURYTRIAL- 2
`
`DIAMONDMASSONG, PLLC
`1215 Fourth Avenue, Suite 1275
`Seattle, WA 98161
`206.445.1258 Phone ¢ 206.445.1257 Fax
`
`

`

`Case 2:21-cv-01563 Document1 Filed 11/18/21 Page 3 of 8
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`design, research, manufacture,test, advertise, promote, market, sell, and distribute the surgical
`stapler and staples that constitute the basis of this lawsuit in the State of Washington. This Court
`has personal jurisdiction over Defendant Ethicon Endo-Surgery, LLC because Defendant has
`submitted itself to the jurisdiction of this Court by engaging in conduct
`in the State of
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`Washington assetforth in this Complaint.
`2.8
`Defendants Ethicon Endo-Surgery, Inc. and Ethicon Endo-Surgery, LLC shall be
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`referred to herein individually by nameorjointly as the “Ethicon Defendants.”
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`Ill.
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`FACTS
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`On November 20, 2018, Joel G. Dean, M.D., undertook to perform a robotic
`3.1
`assisted laparoscopic sigmoid colectomy surgery to remove a portion of Plaintiff's sigmoid colon
`because of an active flare up of smoldering diverticulitis with colonic obstruction affecting a
`portion ofPlaintiff's sigmoid colon at Skagit Valley Regional Hospital. After gaining access to
`Plaintiff's abdomen, Dr. Dean observed that her colon was significantly distended, severely
`diseased and inflamed and he madethe decision to abandon the minimally invasive approach
`and converted to an open descending sigmoid colectomy procedure. Dr. Dean then mobilized
`the sigmoid colon and cleared an area proximal to the diseased portion of the colon and
`transected the diseased portion using a contour stapler.
`3.2
`Dr. Dean then assessed the proximal staple line of the remaining colon and
`determined it would not reach into Plaintiff's pelvis, so he proceeded with mobilizing Plaintiff's
`splenic fixture laparoscopically, which was successfully accomplished. After mobilizing Plaintiff's
`splenic fixture, Dr. Dean determined the proximalstaple line of the remaining colonstill would
`not reach into Plaintiff's pelvis, so he removed someadditional adhesions which allowed him to
`get the proximal staple line out of her abdomen. Dr. Dean observed this portion of the colon
`and noted that colon wasclearly obstructed, so he elected to make a small incision in the colon
`and draineda liter and half of liquid stool from her colon. Dr. Dean then utilized a contour stapler
`to remove a couple more inchesof the colon that included the portion where he had made the
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`incision.
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`COMPLAINT AND DEMANDFORJURYTRIAL- 3
`
`DIAMONDMASSONG, PLLC
`1215 Fourth Avenue, Suite 1275
`Seattle, WA 98161
`206.445.1258 Phone ¢ 206.445.1257 Fax
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`Case 2:21-cv-01563 Document1 Filed 11/18/21 Page 4 of 8
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`Dr. Dean then assessed the colon and determinedthedistalsix inches of the colon
`looked venous congested and he madethe decision to perform a small colotomyin the colon to
`allow him to introduce the anvil of the EEA stapler more proximally in the well perfused area of
`the colon. Dr. Dean then utilized a stapler to cut away the ischemic end of the tissue and
`removed it. Dr. Dean proceeded to the next portion of the surgery and created a side-to-end
`stapled anastomosis using an EEA 29 stapler. Dr. Dean performed a leak test by inflating the
`anastomosis with air through the anus while it was submerged in water. He performedthis test
`twice and no leaks were detected. At the closure of the surgery no complications were noted
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`and Plaintiff was transferred to the PACU.
`3.4.
`In the days following the surgery, Plaintiff began experiencing delirium and
`exacerbation of her chronic obstructive pulmonary disease along with increased levels of
`leukocytes in her blood which necessitated her being transferred to the intensive care unit,
`where she was administered intravenous steroids andintensive nebulizer therapy. Plaintiff also
`underwenta CT scan of her abdomen which revealed a possible anastomotic leak with dilated
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`small bowel and increase in subcutaneousfluid.
`3.5
`OnNovember30, 2018,Plaintiff underwent an exploratory laparotomy performed
`by Dr. Chinnaya Parimi, M.D.at Skagit Valley Regional Hospital. After making an incision and
`accessing Plaintiff's abdomen, Dr. Parimi immediately encountered pus and stool throughout
`her abdomen. Dr. Parimi identified the transverse colon and examined the colon anastomosis
`and noticed there was a pocket offluid posterior to the anastomosis with stool and pus. Dr.
`Parimi palpated the anastomosis and discovered that the anterior wall of the anastomosis was
`intact and the rest of the anastomosis had completely fallen apart. Dr. Parimi then performed a
`resection of the colorectal anastomosis and closureof the rectal stump with an end transverse
`colostomy. Dr. Parimi also performed a washout of the pelvic sepsis, an incision and drainage
`of the surgical woundinfection and placed a pressure wound vacuum on the wound. At the end
`of the surgery, Plaintiff was transferred to the PACUin stable condition.
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`COMPLAINT AND DEMANDFORJURYTRIAL- 4
`
`DIAMONDMASSONG, PLLC
`1215 Fourth Avenue, Suite 1275
`Seattle, WA 98161
`206.445,1258 Phone * 206.445.1257 Fax
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`Case 2:21-cv-01563 Document1 Filed 11/18/21 Page 5 of 8
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`Following the remedial surgery, Plaintiff developed an abdominal wall abscess at
`3.6
`the site of the original stoma and was placed on intravenous steroids. Plaintiff remained
`hospitalized until she was discharged from Skagit Valley Regional Hospital on December10, 2018
`with a PICC line in place, ostomy bagin place, and a wound vac onherincision site. Plaintiff
`returned to Skagit Valley Regional Hospital to receive PICC line infusion therapy from December
`11, 2018 through December19, 2018 due the infection and sepsis she developedfollowing the
`initial surgery. Plaintiff also returned to Skagit Valley Regional Hospital to receive incisional
`wound care treatment until February 19, 2019.
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`Plaintiff still has a colostomy and will likely have to have the colostomy for the
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`remainder ofher life.
`3.8
`Dr. Dean hasidentified the surgical stapler and staples he used during Plaintiff's
`sigmoid colectomy surgery as Ethicon products. Ethicon surgical staplers and staples are
`designed, manufactured, marketed and sold by Ethicon Endo-Surgery,Inc. and/or Ethicon Endo-
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`Surgery, LLC.
`Plaintiff's medical records andbills have identified the surgical stapler used by Dr.
`3.9
`Dean during Plaintiff's November 20, 2018 sigmoid colectomy surgery as an Ethicon CDH29A
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`Circular stapler.
`3.10
`The failure of the surgical stapler and staples to properly close Plaintiff's colon
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`resulted in a numberof complications, including:
`a.
`the need to convert from a less invasive laparoscopic procedure to an open
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`descending sigmoid colectomy surgical procedure;
`the need to undergo an emergent exploratory laparotomy, resection of the
`colorectal anastomosis and closure of the rectal stump with an end transverse
`colostomy on November30, 2018, due to the complications from her November
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`C.
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`20, 2018 surgery;
`a prolonged hospital stay, which included time in the ICU as result of the
`complications from her November20, 2018 surgery;
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`COMPLAINT AND DEMANDFORJURYTRIAL - 5
`
`DIAMONDMASSONG, PLLC
`1215 Fourth Avenue, Suite 1275
`
`206.445.1258 Phone ¢ 206.445,1257 Fax
`
`Seattle, WA 98161
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`Case 2:21-cv-01563 Document1 Filed 11/18/21 Page 6 of 8
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`d.
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`e.
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`months of
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`infusion therapy and wound care treatment as
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`result of the
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`complications from her November 20, 2018 surgery; and
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`a colostomy for the remainder of her life.
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`IV.
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`CLAIMS PURSUANT TO THE WASHINGTON PRODUCT LIABILITY ACT
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`Pursuant to the Washington ProductLiability Act, Chapter 7.72 RCW (the “WPLA),
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`Plaintiff brings the following claims:
`4.1
`It was entirely foreseeable and well-knownto the Ethicon Defendants that
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`incidents involving its surgical staplers and staples such as occurred herein would on occasion
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`take place in the ordinary, anticipated and intended use of said devices.
`4.2
`The Ethicon Defendants defectively designed, manufactured, assembled and
`marketed the surgical stapler and staples in question and soarestrictly liable for Plaintiff's
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`damages.
`Thesurgical stapler is defective because the Ethicon Defendants failed to provide
`4.3
`adequate warnings and/orinstructions regarding the defective conditions and/or the proper use
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`of the stapler and/or staples and so arestrictly liable for Plaintiffs damages.
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`The Ethicon Defendants breached the implied warranties of merchantability and
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`fitness for a particular purpose, and soareliable for Plaintiff's damages.
`4.5
`The Ethicon Defendants were negligent in the design, manufacture, assembly and
`marketing of the surgical stapler and/orstaples in question and so arestrictly liable for Plaintiff's
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`damages.
`4.6
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`Plaintiff's surgeon, Dr. Dean, used the surgical stapler and/or staples as directed
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`for their intended purpose.
`4.7
`At all times herein mentioned, the surgical stapler and/or staples used on Plaintiff
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`were defective within the meaning of the WPLA and Defendants knew of the product defects.
`Moreover, Defendants knew neither Plaintiff nor her surgeon knew,or had reason to know,of
`the product defects. Neither Plaintiff nor her surgeon could have discovered the product defects
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`through the exercise of reasonable care.
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`COMPLAINT AND DEMANDFORJURYTRIAL - 6
`
`DIAMONDMASSONG, PLLC
`1215 Fourth Avenue, Suite 1275
`Seattle, WA 98161
`206.445.1258 Phone * 206.445.1257 Fax
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`

`

`Case 2:21-cv-01563 Document1 Filed 11/18/21 Page 7 of 8
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`4.8
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`The surgical stapler and/or staples had not been materially altered or modified
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`prior to being used onPlaintiff.
`4.9
`At all times material, the Ethicon Defendants were acting through their employees
`and/or agents who were within the course and scopeof their employment and/or agency for
`one or all of the Defendants. The Ethicon Defendants are therefore equally liable under the
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`doctrine of Respondeat Superior and/orprinciples of agencyforall actions of their employees
`and/or agents.
`|
`4.10
`The Ethicon Defendants’ acts and/or omissions were, separately and collectively
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`with the acts and omissions of other Defendants named herein, a producing and/or proximate
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`cause ofPlaintiff's damages.
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`V.
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`DAMAGES
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`5.1.
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`Asa direct and proximate result of Defendants’ aforementioned actions and
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`breach of duties, Plaintiff Joyce Kennedy has been injured and damaged, including, but not
`limited to, repeated medical hospitalizations and medical procedures,past and future medical
`expenses, past and future lost wages, past and future diminished earning capacity, past and
`future pain and suffering, both physical and mental, past and future impairment of the ability
`and capacity to enjoylife and its pleasures, past and future disfigurement, and all other damages
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`that may be recoverable under Washington law.
`5.2
`Plaintiff seeks pre-judgment and post-judgmentinterest from the earliest dates
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`and at the highest legal rates allowed by law.
`5.3
`Plaintiff seeks compensation for her actual damages,
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`in an amount
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`to be
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`determined by the trier-of-fact attrial.
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`Vi.
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`LIMITED PHYSICIAN/PATIENT PRIVILEGE WAIVER
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`Plaintiff only waives the physician-patient privilege to the extent required under
`6.1
`RCW 5.60.060(4)(b), and she does not waive or release any other rights or privileges she
`possesses, including those related to thephysician-patient relationship, other thantheprivilege
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`as set forth in the statute.
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`COMPLAINT AND DEMAND FOR JURYTRIAL - 7
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`DIAMONDMASSONG, PLLC
`1215 Fourth Avenue, Suite 1275
`Seattle, WA 98161
`206.445.1258 Phone * 206.445.1257 Fax
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`

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`Case 2:21-cv-01563 Document1 Filed 11/18/21 Page 8 of 8
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`PRAYER FOR RELIEF
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`WHEREFORE,Plaintiff prays for judgment against Defendants, and each of them, by way
`of damagesin such amountsas might be provenat the time of trial and determinedby thetrier-
`of-fact as reasonable and just under the evidence, as well as for costs and disbursements
`incurred herein, and for such other and furtherrelief as the court may deem just and proper.
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`JURY DEMAND
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`Plaintiff requests a trial by jury pursuantto Rule 38 of the Federal Rules of Civil Procedure.
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`Respectfully submittedthis |
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`day of November, 2021.
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`DIAMOND Massong, PLLC
`/s/ Maria S. Diamond
`Maria S. Diamond, WSBA No. 13472
`1215 Fourth Avenue, Suite 1275
`Seattle Washington 98161
`(206) 445-1258
`Facsimile: (206) 445-1257
`maria@diamondmassong.com
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`and
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`MArtTIN BAUGHMAN, PLLC
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`Ben C. Martin (Pro Hac Vice application forthcoming)
`Kolter C. McKenzie
`(Pro Hac Vice application
`forthcoming)
`3141 Hood Street, Suite 600
`Dallas, Texas 75219
`(214) 761-6614
`Facsimile: (214) 744-7590
`bmartin@martinbaughman.com
`kmckenzie@martinbaughman.com
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`ATTORNEYS FOR PLAINTIFF
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`COMPLAINT AND DEMAND FOR JURYTRIAL- 8
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`DIAMONDMASSONG, PLLC
`1215 Fourth Avenue, Suite 1275
`Seattle, WA 98161
`206.445.1258 Phone ¢ 206.445.1257 Fax
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`