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Three-year-old suit over cold therapy removed to federal court under CAFA

By Legal News Line | Feb 13, 2015

SAN DIEGO (Legal Newsline) - A San Diego, Calif., County woman recently amended her lawsuit to include nationwide class action claims against a medical products manufacturer and four individuals.

Stacy Lucas filed charges against BREG Inc. of fraud, omission or concealment of safety information, unfair competition practices including false advertising in June, but recently filed an amended class action complaint that the defendants have removed to federal court.

Lucas alleges she and others acquired the BREG “Polar Care 500” cold therapy device by prescription from 1992 to the present. According to court papers, BREG allegedly received over 18 accident reports dating back to 1998 regarding tissue damage from this product categorized as “cold injury” similar to frostbite.

According to the original complaint, BREG did not properly report these incidents to the FDA. The suit cites issues with the language contained in the instructions that condones “continuous use” for certain periods of time and alleges continued marketing despite consumer concerns.

Defendants are: Orthofix International, NV of the Netherlands Antilles; Brad Mason, President and CEO of BREG; Greg Nelson, vice president and director; Gary Losse, officer and director of Oasis Sports Medical Group, Inc., who prescribed the product to the plaintiff; and Mark Howard, a former Oasis employee and a current BREG program director. All four individuals are San Diego County residents.

The plaintiff seeks injunctive relief and reimbursement for the product cost and punitive damages, along with attorneys fees. She is represented by Marc Stern of the Law Office of Marc O. Stern, La Jolla, Calif.

The defendants removed the case to U.S. District Court for the Southern District of California on Feb. 6 under the Class Action Fairness Act.

Usually removal occurs within a month of the original lawsuit being filed, but the defendants claim it is still proper in this case.

"While this lawsuit has been pending for over three-and-a-half years, the plaintiffs still have not moved for certification and have only added their proposed nationwide class relatively recently," the removal notice says.

"They added a new named plaintiff less than two months ago, and
represented to the state court that they hope to add more."

U.S. District Court for the Southern District of California case number 3:15-cv-00258


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