A woman who claims she was sickened by gadolinium-based contrast agents (GBCAs) beat back a second attempt to dismiss her chemical toxicity suit by the chemical-makers and sellers.
In a 36-page opinion, U.S. District Judge Noel L. Hillman sided with the plaintiff, Kimberly Gremo, saying the New Jersey woman can proceed with her lawsuit against Bayer Corporation, Bayer HealthCare LLC, Bayer HealthCare Pharmaceuticals, Inc., GE Healthcare, Inc., General Electric Company, Mallinckrodt, Inc., Mallinckrodt LLC, Guerbert LLC, Liebel-Flarsheim Company LLC, AmerisourceBergen Corporation and AmerisourceBergen Drug Corporation.
GBCAs are chemicals administered intravenously to produce sharper MRI images. Gremo claims that the GBCAs used in her MRIs in 2015 caused a condition known as gadolinium deposition disease (GDD) and a host of debilitating side effects, such as:
- Rough patches
- Loss of elasticity
- Callus-like buildup
- Darkened teeth
- Spots on the teeth
- Brain fog
- Memory loss
- Loss of smell
- Hip pain
- Back pain
- Bone pain
- Joint pain
- Muscle aches
- Fasciculation (involuntary muscle twitches)
Although the symptoms of GDD are subject to debate, as is its very existence, Hillman stated that Gremo’s suit didn’t hinge on whether the chemical-toxicity disease is dangerous or even exists.
Instead, the judge focused on one main legal concept in ruling against the dismissal of Gremo’s case: the impossibility preemption. Broadly speaking, the impossibility preemption provides legal immunity when federal law and state law conflict.
The defendants had argued that since the U.S. Food and Drug Administration wouldn’t have approved an updated label that would’ve satisfied Gremo, her entire lawsuit — which is based on violations of state law — should be tossed out. But the judge was unconvinced, writing that the impossibility preemption is a “demanding defense,” but isn’t grounds for dismissal.
In her suit, Gremo argues the defendants have violated the failure-to-warn and defective design sections of New Jersey’s Product Liability Act and have breached the express warranty of their product under New Jersey state law.