N.J. Federal Judge Predicts State High Court Would Not Recognize ‘Failure to Test’ as Tort

NEW YORK — A New York federal judge has dismissed claims for negligent failure to test, in an Ethicon pelvic mesh action, predicting the state’s highest court would not recognize a tort imposing liability for a manufacturer’s alleged failure to test.

On Feb. 22, Judge Denise Cote of the U.S. District Court for the Southern District of New York also dismissed the claims for gross negligence, negligent misrepresentation, and fraud as inadequately pled.

On March 9, 2010, Betty Dupere underwent implantation of Ethicon’s Gynecare TVT pelvic mesh device to treat stress urinary incontinence. She later developed vaginal mesh exposure and …