A California physician has filed a putative class action against Kimberly-Clark Corp. alleging that its Microcool Breathable High Performance Surgical Gowns® do not meet industry standards, as the company advertises, and that reliance on this alleged false advertising could expose health care workers using the defective gowns while treating Ebola patients to an increased risk of infection. Shahinian v. Kimberly-Clark Corp., No. 14-8390 (U.S. Dist. Ct., C.D. Cal., filed October 29, 2014). He seeks damages in excess of $500 million.
The physician alleges that Kimberly-Clark advertises its line of gowns as Association for the Advancement of Medical Instrumentation (AAMI) Level 4, the highest level of gown protection that AAMI awards, despite the company’s knowledge of 2013 tests in which “the High Performance Gowns failed at rates that greatly exceeded failure rates acceptable for satisfying AAMI Level 4 standards, with many of the gowns experiencing catastrophic failures. Among other things, the tests revealed that the gowns allowed liquid and bacterial and viral pathogens to penetrate the gowns, thus placing physicians, health care professionals and patients at considerable risk.” The plaintiff, a skull-base surgeon, points to recent Kimberly-Clark advertisements that allegedly advise “health care facilities to use the High Performance Gowns in connection with patients who may be infected with the Ebola virus.” Alleging affirmative misrepresentation, fraudulent concealment, negligent misrepresentation, and violations of the California Unfair Competition Law and False Advertising Law, the plaintiff seeks an injunction, class certification, compensatory and punitive damages, and attorney’s fees.