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Jury Says ConMed Subsidiary Made False Claims in Advertising, Awards $12M in Damages

Lexion accused SurgiQuest of engaging in unfair competition.

Published: April 19, 2017

HOT AIR? The name "AirSeal" is misleading, Lexion claimed, because the device can cause air to be sucked into the abdomen.

A jury has awarded $12.2 million in damages against ConMed subsidiary SurgiQuest for making false advertising claims regarding its AirSeal insufflation management system. Lexion, which sells the Insuflow heater/humidifier and the Synergy line of trocars, had accused SurgiQuest of engaging in unfair practices.

ConMed, which acquired SurgiQuest in 2015, a year and a half after the suit was initiated, says it will appeal the verdict.

Lexion accused SurgiQuest of making false claims in 3 areas.

SurgiQuest reps, it said, had created an impression that the AirSeal system could perform essentially the same function as Insuflow, which delivers heated and humidified carbon dioxide to the abdomen during laparoscopic surgery. But, Lexion argued, AirSeal actually puts dry gas into the body during laparoscopic surgery and removes moisture through evaporation inside the abdomen.

Lexion further argued that the name "AirSeal" is misleading, citing evidence that when suction is used, or when carbon dioxide leaks from the abdomen, AirSeal causes air to be sucked into the abdomen. That, it said, alters the concentration of carbon dioxide relative to other gasses in the body cavity, which, according to a SurgiQuest patent, is "typically undesirable for the safety of the patient." A Lexion expert testified that the presence of air may lengthen the time needed for subcutaneous emphysema to resolve and that other complications, including pneumothorax, had occurred with AirSeal.

Finally, Lexion accused SurgiQuest of making false claims about AirSeal's ability to remove surgical smoke from the abdomen. Its expert testified that surgical smoke vents from the top of the AirSeal trocar during surgery, and that the AirSeal filtration system is incapable of removing toxic and carcinogenic gasses in surgical smoke.

The jury awarded Lexion $2.2 million in lost profits and $10 million in punitive damages.

ConMed is "disappointed" and plans to "pursue all post-trial and appellate remedies," says Daniel S. Jonas, ConMed's executive VP of legal affairs The verdict, he says, will have no impact on the availability of the AirSeal system.

Jim Burger


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