Kimberly-Clark Corp. is asking a California federal court to hold off on setting a trial date over claims it defrauded medical centers by touting its surgical gowns as more protective against deadly diseases until a federal appeals court decides whether to grant the company’s request to dissolve a class action related to the lawsuit.
Lead plaintiff Bahamas Surgery Center LLC filed a lawsuit against Kimberly-Clark and Halyard Health Inc., alleging the companies pushed the MicroCool surgical gowns as meeting the highest standards of liquid barrier protection against infectious diseases like Ebola, when in fact the gown had failed to meet industry standard tests. The companies claim they were conned by the gown makers, who allegedly hid the fact that they grew lax on standards.
A witness for Bahamas said that if she had known the gowns had failed the industry standards test, Bahamas would not have bought the gowns in the first place. The judge said that was enough to establish an injury-in-fact in the case.
Kimberly-Clark and Halyard asked the California federal court to hold tight on setting the trial date until the Ninth Circuit weighs in on the companies’ request to undo the class certification.
The judge allowed two groups of California buyers to proceed with their lawsuits but said state laws varied too much for an established nationwide class action. One of the California classes allowed to proceed seeks damages related to the purchase of surgical gowns from early 2012 to early 2015, based on the state’s Unfair Competition Law. The second class seeks an injunction blocking Halyard from continuing to market the gowns as protective against infectious disease.