Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 1 of 15 1 2 3 4 5 6 7 8 Corey M. Eschweiler, Esq. (Bar No. 6635) GLEN LERNER INJURY ATTORNEYS 4795 South Durango Drive Las Vegas, Nevada 89147 Telephone: (702) 877-1500 Facsimile: (702) 933-7043 ceschweiler@glenlerner.com Colin P. King (UT Bar No. 1815) (Pro Hac Vice Pending) cking@dkowlaw.com DEWSNUP KING OLSEN WOREL HAVAS MORTENSEN 36 South State Street, Suite 2400 Salt Lake City, UT 84111 Telephone: (801) 533-0400 9 Attorneys for Plaintiff 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 Ryan Q. Claridge, 13 CASE NO.: Plaintiff, 14 vs. 15 16 17 18 19 I-FLOW CORPORATION, a Delaware corporation; I-FLOW, LLC, a Delaware limited liability company; DJO LLC (f.k.a. DJ ORTHOPEDICS, LLC), a Delaware limited liability company; DJO, INCORPORATED, aka DJO, INC., a Delaware corporation; STRYKER CORPORATION, a Michigan corporation; and STRYKER SALES CORPORATION, a Michigan corporation, 20 COMPLAINT AND JURY DEMAND Defendants. 21 Plaintiff, Ryan Claridge, by and through his counsel, complains of Defendants, I-Flow 22 Corporation; I-Flow, LLC; DJO, LLC; DJO, Incorporated, aka DJO, Inc.; Stryker Corporation; and 23 Stryker Sales Corporation, demands a jury trial, and alleges as follows: JURISDICTION 24 25 1. This Court has subject matter jurisdiction over this action pursuant to the provisions of 28 26 U.S.C. § 1332 as Plaintiff was a citizen of Nevada at the time of his surgery, and is currently a citizen of 27 Nevada, and Defendants are citizens of different states. -1- Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 2 of 15 1 2. This Court has personal jurisdiction over Defendant I-Flow Corporation, a Delaware 2 corporation with its principal place of business in Lake Forest, California. 3 conducted regular and sustained business in Nevada by selling and distributing its products in Nevada. 4 3. Defendant I-Flow has This Court has personal jurisdiction over Defendant I-Flow, LLC, a Delaware Limited 5 Liability Company, with its principal place of business in California. Defendant I-Flow, LLC, has 6 conducted regular and sustained business in Nevada by selling and distributing its products in Nevada. 7 Defendants I-Flow Corporation and I-Flow, LLC, will be referred to as “Defendant I-Flow.” 8 9 10 11 4. This Court has personal jurisdiction over Defendant DJO, LLC (formerly known as DJ Orthopedics, LLC), a Delaware Limited Liability Company with its principal place of business in Vista, California. Defendant DJO, LLC, is registered to do business in the State of Nevada. 5. This Court has personal jurisdiction over Defendant DJO, Incorporated, aka DJO, Inc., a 12 Delaware corporation with its principal place of business in Vista, California. 13 Incorporated, has conducted regular and sustained business in Nevada by selling and distributing its 14 products in Nevada and at all relevant times was doing business in the State of Nevada. Defendants DJO, 15 LLC, and DJO, Incorporated, will be referred to as “Defendant DJO.” 16 6. Defendant DJO, This Court has personal jurisdiction over Defendants Stryker Corporation and Stryker 17 Sales Corporation, which are Michigan corporations with their principal places of business in 18 Kalamazoo, Michigan. Stryker Sales Corporation is registered to do business in the State of Nevada, and 19 these Defendants have conducted regular and sustained business in Nevada by selling and distributing 20 their products in Nevada, as described below. Collectively, Defendants Stryker Corporation and Stryker 21 Sales Corporation are referred to herein as “Defendant Stryker.” 22 23 7. complete diversity of citizenship. GENERAL ALLEGATIONS 24 25 26 The amount in controversy exceeds $75,000 exclusive of interest and costs, and there is 8. Defendants, or one of their subdivisions, agents, or alter egos, designed, tested, manufactured, assembled, labeled, marketed, distributed, and sold pain pumps. 27 -2- Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 3 of 15 1 2 3 4 5 9. The pain pump is a medical device intended to deliver, via catheter, a continuous dose of pain medication directly into the operative site immediately following surgery. 10. The pain pump is designed and intended to be used with commonly used anesthetics such as bupivacaine, with or without epinephrine, over the course of two days or more. 11. The continuous injection of such medications over time directly into the shoulder joint can 6 cause serious and permanent damage to the shoulder joint cartilage, chondrolysis, the death of the 7 chondrocytes and a complete or nearly complete destruction of cartilage in the shoulder joint. 8 9 10 11 12 13 12. At all pertinent times, Defendants represented to the public and to health-care professionals that the pain pump was a safe and effective product used for post-operative pain management. 13. At all pertinent times, Defendants represented to the public and health care professionals that pain pumps could appropriately be used in or near the shoulder joint. 14. At all pertinent times, Defendants knew that their pain pumps were not cleared by the 14 United States Food and Drug Administration (“FDA”) for use in the joint space. In fact, Defendants 15 knew that the FDA, as early as 1999, had repeatedly rejected their requests for permission to market these 16 devices for orthopedic use and/or use in the joint space, based on a lack of safety data. 17 15. At all pertinent times, Defendants knew or should have known that their pain pumps, 18 when used with anesthetic medications in the joint space, could be toxic to shoulder joint cartilage. 19 Defendants failed to conduct studies to determine the toxicity of their pain pumps to human cartilage 20 when used with anesthetic medications in the joint space. 21 16. Defendants actively promoted their pain pumps to orthopedic surgeons for orthopedic use 22 and/or use in the joint space, despite the FDA’s denial of permission to market the device for these 23 indications, and despite Defendants’ failure to test the safety of their pain pumps for joint space use. 24 17. Defendants did not warn Plaintiff Ryan Claridge or his surgeon that pain pumps had been 25 denied clearance by the FDA for orthopedic use and/or use in the joint space and that pain pumps’ safety 26 for such indications had not been established. 27 -3- Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 4 of 15 18. 1 2 risks and dangers of using the pain pump and anesthetic medications in this manner. 19. 3 4 Defendants did not warn Plaintiff Ryan Claridge or his surgeon about the unreasonable Plaintiff Ryan Claridge’s surgeon used the pain pump in the manner instructed and directed by Defendants. 20. 5 In November 2009, the FDA issued a report warning healthcare professionals “to not use 6 [pain pumps] for continuous intra-articular infusion of local anesthetics after orthopedic surgery.” In the 7 same report, the FDA stated that it “has not cleared any [pain pumps] with an indication for use in intra- 8 articular infusion of local anesthetics.” 21. 9 10 Plaintiff Ryan Claridge grew up in Michigan and was an exceptional multi-sport athlete in high school and college. 22. 11 Ryan Claridge attended college and played NCAA football at the University of Nevada, 12 Las Vegas (UNLV), from 2000 to 2004, under UNLV’s head coach John Robinson, who had previously 13 been the head football coach for USC in the PAC-10 and the Los Angeles Rams in the NFL. Ryan was a 14 star linebacker at UNLV. 23. 15 16 a four-year contract. 24. 17 18 In 2005 Ryan Claridge was drafted by the New England Patriots as a linebacker and given During the summer of 2005 Ryan Claridge suffered a left shoulder injury during the Patriots’ pre-season training camp. 25. 19 Plaintiff Ryan Claridge underwent left shoulder arthroscopic surgery in August 2005 at 20 Seven Hills Surgery Center, Henderson, Nevada, by Dr. Randy Yee. Dr. Yee inserted post-operatively 21 into Ryan’s left shoulder joint an On-Q pain pump manufactured and sold by Defendants I-Flow and 22 DJO. 23 24 25 26 26. The On-Q pain pump infused anesthetic continuously for at least 48 hours into Ryan’s shoulder joint for post-operative pain relief. 27. Unbeknownst to Dr. Yee and to Ryan Claridge, the On-Q pain pump killed the living chondrocytes in Ryan’s shoulder cartilage, causing irreversible destruction of his shoulder cartilage. 27 -4- Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 5 of 15 28. 1 During the following months, as Ryan followed his prescribed physical therapy in 2 preparation to return to active duty with the New England Patriots, the normal expected improvement in 3 range of motion and function and pain relief did not occur. 29. 4 5 In fact, by the last several months of 2005, Ryan’s shoulder worsened. He again saw Dr. Yee about the unusual lack of progress. 30. 6 In January 2006, Dr. Yee did an exploratory arthroscopic examination of Ryan’s left 7 shoulder joint. This surgery occurred at a different surgery center, the Southern Hills Hospital and 8 Medical Center in Las Vegas, Nevada. 31. 9 Dr. Yee found extensive cartilage damage during the surgery. He removed dead and 10 damaged cartilage. At the end of the surgery, Dr. Yee inserted into Ryan’s shoulder joint a pain pump 11 manufactured and sold by Defendant Stryker. 32. 12 The pain pumps manufactured and sold by the Defendants destroyed Plaintiff Ryan 13 Claridge’s left shoulder, which rendered him unable to play football in the NFL for the New England 14 Patriots or any other team. 33. 15 Plaintiff Ryan Claridge’s injuries resulted in severe and permanent injuries and 16 impairments to his left shoulder and very severe lifetime impairments, pain, and restrictions to his 17 activities of daily living. 34. 18 As a direct result of the destruction of Plaintiff’s shoulder joint from Defendants’ pain 19 pumps, Plaintiff has suffered multiple harms and losses, including, but not limited to, severe physical 20 pain, mental suffering, loss of the enjoyment of life, past and future medical, surgical, and related 21 expenses, impairment, disfigurement, past and future loss of earnings and earning capacity, and loss of 22 household services. 35. 23 Plaintiff learned for the first time in the spring of 2018 that the pain pumps placed in his 24 shoulder joint for post-operative pain relief had killed the living cells of his shoulder cartilage, which led 25 to the destruction of his shoulder joint cartilage and the recent diagnosis of chondrolysis. 26 /// 27 /// -5- Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 6 of 15 FIRST CAUSE OF ACTION (Strict Products Liability) Against All Defendants 1 2 36. Plaintiff incorporates by reference the preceding allegations as if fully set forth herein. 37. Defendants designed, tested, manufactured, assembled, labeled, marketed, distributed, 3 4 and/or sold pain pumps, including those used in Plaintiff Ryan Claridge’s surgeries. 5 38. These pain pumps were defectively designed in that, among other things, the continuous 6 infusion of post-surgical anesthetic solution at the delivery rates achieved by the pain pumps can cause 7 permanent shoulder injury, namely, severe chondrolysis and total destruction of cartilage and 8 surrounding tissue. 9 39. As a result of this design defect, Defendants’ pain pumps are unreasonably dangerous. 40. As a result of their design, the pain pumps were more dangerous than an ordinary and 10 11 reasonable user of the pain pumps would expect, considering the pain pumps’ characteristics, uses that 12 were foreseeable to Defendants, and any instructions or warnings given by Defendants. 13 41. 14 of Defendants’ pain pumps in or near the shoulder joint. 15 42. 16 Plaintiff Ryan Claridge neither knew nor should have known of the danger posed by use Plaintiff Ryan Claridge’s surgeon did not have actual knowledge sufficient to know the danger posed by use of Defendants’ pain pumps in or near the shoulder joint, and Defendants did not give 17 Plaintiff Ryan Claridge or his surgeon sufficient warning regarding the danger posed by use of 18 Defendants’ pain pumps in or near the shoulder joint. 19 43. The design defects in Defendants’ pain pumps were present at the time Defendants 20 manufactured, distributed, and sold the pain pumps. 21 44. Defendants knew, or reasonably should have known, of the danger posed by use of their 22 pain pumps in or near the shoulder joint. 23 45. Defendants were required to warn about the danger posed by the foreseeable use of their 24 pain pumps in or near the shoulder joint. 25 46. 26 Defendants failed to provide an adequate warning to Plaintiff Ryan Claridge or his surgeon at the time Defendants’ pain pumps were manufactured, distributed, and sold, in that, in light of 27 -6- Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 7 of 15 1 the ordinary knowledge common to members of the community who use Defendants’ pain pumps, 2 Defendants failed to: a. 3 provide a warning that was designed to reasonably catch the attention of Plaintiff Ryan Claridge and his surgeon; 4 b. 5 provide a warning that was understandable to Plaintiff Ryan Claridge and his surgeon; 6 c. 7 provide a warning that fairly indicated the danger from the pain pumps’ foreseeable use in or near the shoulder joint; 8 d. 9 provide a warning that was sufficiently conspicuous to match the magnitude of the danger posed by use of the pain pumps in or near the shoulder joint; 10 e. 11 provide a warning that the safety and effectiveness of the devices for use in the shoulder joint space had not been established; and 12 f. 13 provide a warning that when used as designed, the Defendants’ pain pumps 14 delivered, over time, dangerously high doses of medication directly into the 15 shoulder joint. 47. 16 17 Defendants’ failure to provide an adequate warning made Defendants’ pain pumps defective and unreasonably dangerous. 48. 18 The pain pumps were unreasonably and dangerously defective because at no time did 19 Defendants conduct adequate testing to determine whether pain pumps placed for infusion in or near the 20 joint space could cause damage to articular cartilage. 21 49. The defects in the pain pumps were a proximate cause of the Plaintiff’s harms and losses. 22 50. As a direct result of the use of the pain pumps in Plaintiff Ryan Claridge’s shoulder, 23 Plaintiff has suffered harms and losses, including, but not limited to, severe physical pain, mental 24 suffering, loss of the enjoyment of life, past and future medical, surgical, and related expenses, 25 impairment, disfigurement, past and future loss of earnings and earning capacity, and loss of household 26 services. 27 /// -7- Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 8 of 15 1 SECOND CAUSE OF ACTION (Negligence) Against All Defendants 2 3 51. Plaintiff incorporates by reference the preceding allegations as if fully set forth herein. 4 52. Defendants had a duty to design, manufacture, test, inspect, assemble, label, market, 5 6 distribute, and sell the pain pumps so as to eliminate any unreasonable risk of foreseeable injury. 53. At all relevant times, Defendants breached this duty and failed to use reasonable care in 7 designing, manufacturing, testing, inspecting, assembling, labeling, marketing, distributing, and selling 8 their pain pumps. Defendants’ negligence includes, but is not limited to, the following: 9 a. assembly of the pain pumps; 10 11 Defendants failed to conduct a proper assessment and analysis of the design and b. Defendants failed to properly test and/or inspect the pain pumps in the 12 environment in which they were to be used to ensure that the pain pumps would be 13 safely used in a manner and for a purpose for which they were made; 14 15 16 c. Defendants promoted and marketed their pain pump for use in shoulder surgery even though— i. FDA, and in fact had been specifically rejected by the FDA; 17 18 Use of the pain pump in the joint space had not been cleared by the ii. Continuous injection of anesthetic medications, through a catheter, 19 directly into the shoulder joint for two or more days had not been 20 adequately tested for safety or effectiveness; 21 iii. The risk of chondrolysis and other serious post-operative problems 22 associated with using the pain pumps as designed and instructed 23 outweighed the possible benefits of such use. 24 iv. Defendants failed to provide adequate warnings and instructions to 25 Plaintiff Ryan Claridge and to physicians and medical providers 26 using the pain pumps; and 27 v. Defendants failed to recall the pain pumps. -8- Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 9 of 15 1 54. Defendants’ negligence was a proximate cause of the Plaintiff’s harms and losses. 2 THIRD CAUSE OF ACTION (Breach of Express Warranty) Against All Defendants 3 4 55. Plaintiff incorporates by reference the preceding allegations as if fully set forth herein. 5 56. On information and belief, the Defendants expressly warranted that the pain pumps were 6 safe for their intended use. 7 57. The Defendants breached any express warranties. 8 58. The Defendants’ breaches of any express warranties were a proximate cause of the 9 Plaintiff’s harms and losses. 10 FOURTH CAUSE OF ACTION (Breach of Implied Warranty of Merchantability) Against All Defendants 11 12 59. Plaintiff incorporates by reference the preceding allegations as if fully set forth herein. 13 60. Defendants impliedly warranted that their pain pumps, together with instructions and 14 materials explaining their selection and use, were reasonably fit for the ordinary purposes for which such 15 products are intended and were merchantable. 16 61. The Defendants breached their implied warranties of merchantability in that, at the time of 17 their placement into the stream of commerce and at the time of Plaintiff Ryan Claridge’s injuries, the 18 pain pumps, together with instructions and materials explaining their selection and use, were not 19 reasonably fit for the ordinary purposes for which such products are intended and were unmerchantable 20 to users and consumers. 21 22 62. The Defendants’ breaches of the implied warranty of merchantability were a proximate cause of the Plaintiff’s harms and losses. 23 FIFTH CAUSE OF ACTION (Breach of Implied Warranty of Fitness for a Particular Purpose) Against All Defendants 24 25 63. Plaintiff incorporates by reference the preceding allegations as if fully set forth herein. 26 64. At the time of placement of Defendants’ pain pump into the stream of commerce, and at 27 the time of Plaintiff Ryan Claridge’s surgeries, Defendants knew or had reason to know that: -9- Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 10 of 15 a. 1 Plaintiff Ryan Claridge and his surgeon wanted Defendants’ pain pump for a 2 particular purpose, namely, to aid in Plaintiff Ryan Claridge’s healing from 3 shoulder surgery; and b. 4 judgment to select or furnish a suitable device. 5 6 Plaintiff Ryan Claridge and his surgeon were relying on Defendants’ skill or 65. Defendants impliedly warranted that the pain pump, together with instructions and 7 materials explaining its selection, installation, and use, were fit for the particular purpose for which such 8 items were required for use by Plaintiff Ryan Claridge. 9 66. The Defendants breached their implied warranties of fitness for a particular purpose in 10 that, at the time of their placement into the stream of commerce and at the time of the aforesaid injuries to 11 Plaintiff Ryan Claridge, Defendants’ pain pumps, together with instructions and materials explaining 12 their selection, installation, and use, were not fit for the particular purpose for which Plaintiff’s surgeon 13 and Plaintiff Ryan Claridge required them. 14 15 67. The Defendants’ breaches of the implied warranty of fitness for a particular purpose were a proximate cause of the Plaintiff’s harms and losses. 16 SIXTH CAUSE OF ACTION (Misrepresentation and Fraudulent Concealment) Against all Defendants 17 18 19 20 21 22 68. Plaintiff incorporates the allegations within all prior paragraphs within this Complaint as if they were fully set forth herein. 69. Defendants had a duty to provide truthful information and to not provide misleading information about their pain pumps to surgeons and the public, including the Plaintiff. 70. Defendants, by and through their highest levels of management and leadership, and 23 implemented through their employees, agents, and sales representatives, made misrepresentations or 24 omissions of facts material to physicians to induce them to choose post-arthroscopic surgery use of pain 25 pumps for their patients’ pain relief. 26 27 71. Defendants’ misrepresentations included, but were not limited to, the following: a. That post-arthroscopic shoulder surgery pain pump use in the shoulder joint was - 10 - Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 11 of 15 safe; 1 b. 2 That pain pumps had been used for years in other parts of the body, and therefore were safe for use in shoulder joints; 3 c. 4 That post-arthroscopic shoulder surgery pain pump use in the shoulder joint had been tested and testing had determined such use to be safe; and 5 d. 6 That the FDA had approved in some fashion, or had not advised against or 7 prohibited, the use of pain pumps in the shoulder joint for post-arthroscopic 8 shoulder surgery pain relief. 72. 9 10 Defendants knew or should have known at the time that they made their misrepresentations and omissions that they were false. 73. 11 Defendants, at the highest levels of their management and leadership, caused multiple 12 material misrepresentations and/or omissions to be made to surgeons and others involved in the purchase 13 and use of pain pumps, by and through false and misleading information taught to and disseminated by 14 Defendants’ employees and agents, including pain pump sales representatives who routinely appeared in 15 surgical operating rooms promoting the use of pain pumps to shoulder surgeons such as Dr. Yee. 74. 16 17 Defendants caused the above-described misrepresentations to be made about their pain pumps intentionally, recklessly and without regard for the truth. 75. Defendants failed to use reasonable care to determine whether their representations were 20 76. Defendants were in a better position than surgeons to know the true facts. 21 77. Defendants had a financial interest in transactions dependent on the facts as represented by 18 19 22 23 24 true. Defendants. 78. Defendants intended that surgeons, including Plaintiff’s shoulder surgeon, would rely on their misrepresentations and omissions. 25 79. 26 omissions. Plaintiff’s physician reasonably relied upon Defendants’ misrepresentations and 27 - 11 - Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 12 of 15 1 2 3 80. The Defendants intentionally or negligently did not alter or correct the disseminated information they knew to be misrepresentations or omissions. 81. By reason of Dr. Yee’s reasonable reliance on Defendants’ misrepresentations and 4 omissions of material fact, Dr. Yee implanted Defendants’ pain pumps into Plaintiff’s left shoulder joint 5 in 2005 and 2006, each of which infused anesthetics continuously into Plaintiff’s intra-articular joint for 6 over 48 hours, and each of which caused irreparable destruction to his shoulder cartilage. 7 82. As a direct and proximate result of Defendants’ intentional and/or reckless 8 misrepresentations, Plaintiff Ryan Claridge has suffered and continues to suffer egregious and lifelong 9 injuries, pain, restrictions, disfigurement, impairments and damages. 10 83. As a direct and proximate result of Defendants’ intentional and/or reckless 11 misrepresentations, Plaintiff Ryan Claridge has suffered and continues to suffer lifelong medical, 12 medication, and related expenses and costs; the loss of his professional NFL football career; substantial 13 loss of past and future income and benefits; severely impaired earning capacity; and other substantial 14 related economic damages. 15 16 17 18 19 84. Plaintiff is entitled to recover damages caused by Defendants’ misrepresentations in an amount to be determined at trial. 85. Defendants were under a continuing duty to disclose the true facts regarding pain pump use for intra-articular joint use, and knowingly and fraudulently concealed the true facts. 86. Plaintiff and the medical community were kept in ignorance of important information 20 essential to the pursuit of these claims, without any fault or lack of diligence on their part. As a result of 21 Defendants’ fraudulent concealment of the true facts, Plaintiff and the medical community could not 22 reasonably have known or become aware of the dangerous nature of pain pumps in intra-articular joints at 23 the time of Plaintiff’s left shoulder surgeries by Dr. Yee. 24 25 87. concealment and denial of the true facts regarding intra-articular use of their pain pumps. DAMAGES 26 27 Any applicable statute of limitations has been tolled by Defendants’ knowing and active 88. Plaintiff incorporates by reference the preceding allegations as if fully set forth herein. - 12 - Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 13 of 15 1 2 89. As a direct and proximate result of the Defendants’ fault set forth generally above, Plaintiff has suffered and will suffer the following damages, in amounts to be proved at trial: a. 3 General damages for severe physical pain, mental suffering, impairment, 4 disability, disfigurement, and loss of the enjoyment of life suffered by Plaintiff 5 Ryan Claridge; b. 6 Past, present, and future damages for the costs of medical, surgical, rehabilitative treatment and related expenses and care for Plaintiff Ryan Claridge; 7 c. 8 Past and future loss of wages, earnings and earning capacity of Plaintiff Ryan Claridge; 9 10 d. Damages for Plaintiff Ryan Claridge’s loss of household services; and 11 e. Plaintiff’s costs of this action, together with interest on special and general 12 damages from the date of occurrence at the legal rate until paid, interest on any 13 judgment awarded herein at the legal rate until paid, and other and further relief as 14 the Court deems equitable and just. PUNITIVE DAMAGES 15 16 90. As early as 1999, Defendants knew that the FDA had not approved use of pain pumps in 17 or near the shoulder joint space, but they continued to market and promote pain pumps specifically for 18 orthopedic, joint-space use. 19 91. Defendants knew that the safety of their pain pumps for orthopedic and joint-space use 20 had not been established, yet they actively marketed and promoted their pain pumps to orthopedic 21 surgeons for orthopedic use, including joint-space use, without ever conducting studies to determine the 22 safety of such use. 23 92. Despite the above, Defendants continued to market pain pumps for joint-space use and did 24 not issue a warning to inform the public that the safety of pain pumps in the joint space had not been 25 established. 26 27 93. These acts and omissions of Defendants show that the Defendants have acted with oppression, fraud, or malice, express or implied, that their conduct was willful and malicious or - 13 - Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 14 of 15 1 intentionally fraudulent, or that they engaged in despicable conduct with a conscious disregard of the 2 rights or safety of others, including Plaintiff, consciously and deliberately disregarding known safety 3 measures in reckless disregard of the possible results. Defendants’ conduct makes them liable to Plaintiff 4 for punitive or exemplary damages, in an amount to be subject to proof at trial. PRAYER FOR RELIEF 5 WHEREFORE, Plaintiff prays for judgment in his favor and against Defendants awarding the 6 7 following: 8 1. 9 damages: A monetary award sufficient to compensate Plaintiff for the following categories of a. 10 General damages for severe physical pain, mental suffering, inconvenience, 11 impairment, disfigurement, and loss of the enjoyment of life suffered by Plaintiff 12 Ryan Claridge; b. 13 Past, present, and future damages for the costs of medical, surgical, rehabilitative treatment and related expenses and care for Plaintiff Ryan Claridge; 14 c. 15 Past and future loss of wages, earnings and earning capacity of Plaintiff Ryan Claridge; and 16 d. 17 Damages for Plaintiff Ryan Claridge’s loss of household services. 18 2. Punitive damages, in an amount to be subject to proof at trial. 19 3. Plaintiff’s costs of this action. 20 4. Interest on past and future special damage amounts from the date of injury at the legal rate 21 until paid. 22 5. Interest on any judgment awarded herein at the legal rate until paid. 23 6. Such other and further relief as the Court deems equitable and just. 24 /// 25 /// 26 /// 27 /// - 14 - Case 2:18-cv-01654-GMN-PAL Document 1 Filed 08/30/18 Page 15 of 15 1 JURY DEMAND 2 Plaintiff requests a jury trial in this case. 3 DATED this 30th day of August, 2018. GLEN LERNER INJURY ATTORNEYS 4 /s/ Corey M. Eschweiler Corey M. Eschweiler Attorneys for Plaintiff 5 6 7 DEWSNUP KING OLSEN WOREL HAVAS MORTENSEN 8 /s/ Colin P. King Colin P. King Attorneys for Plaintiff 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 - 15 -