Kim-Marie Bannon Court Petition

Dennis D. Webb, S.C.I.N. 09881
142 North Mosley, 2nd floor
Wichita, KS 67202
(316) 264-3500

COMES NOW the plaintiff, Kim Bannon, by her counsel Dennis D. Webb, and for her cause of action, states:
1. Defendant Calypte Biomedical Corporation—Delaware (hereinafter “CBC”) is a corporation duly registered to do business in the state of California, and may be served by its resident agent John J. Dipietro, 1440 Fourth Street, Berkley, CA 94710.
2. Defendant Roche Diagnostics Corporation (hereinafter “Roche”) is a corporation registered to do business in Kansas and may be served with process at its resident agent, National Registered Agents of Kansas, Inc., 2101 SW 21st Street, Topeka, KS 66604.
3. Plaintiff Kim Bannon (hereinafter “Bannon”) is a resident of Wichita, Sedgwick County, Kansas and all relevant acts occurred within said jurisdiction.
4. In April of 1992, during the course of routine medical diagnostic testing, Bannon was diagnosed by Dr. Donna Sweet of the Kansas University School of Medicine, Wichita, Kansas, as carrying the “Human Immunodeficiency Virus” referred to as HIV, and widely purported to be the cause of Acquired Immune Deficiency Syndrome or AIDS.
5. The testing procedure used to make such a diagnosis included the “Recombigen EIA Screen—HIV-1 EIA” and the “Cambridge Biotech HIV-1 Western Blot Kit,” both manufactured by defendant CBC, which included a protocol for administration of the test and criteria for assessing the results of said kits.
6. Dr. Sweet described the results of the CBC testing as “indisputable” and “classic,” and told Bannon she would develop the full spectrum of AIDS within five to seven years and die soon thereafter.
7. In subsequent testing from 1996 to 2003 undertaken at the direction of Dr. Sweet, Bannon was administered an AMPLICOR HIV-1 Monitor Test Kit manufactured by defendant Roche, which included a protocol and criteria for assessing the results of said kits; all of said tests purportedly confirming the diagnosis of HIV infection.
8. Likewise, the Roche testing was described by Sweet as confirmation of the HIV diagnosis, and her prognosis of the full spectrum of AIDS and death within five to seven years.
9. In the context of the medical services and testing described, Plaintiff was a consumer within the meaning of the Kansas Consumer Protection Act, K.S.A. 50-623 et seq. (hereinafter KCPA).
10. In the context of the medical services and testing described, Defendants CBC and Roche were suppliers of consumer goods or services within the meaning of the KCPA.
11. Plaintiff discovered on April 18, 2002 that the science, methodology, and assumptions relied upon by defendants CBC and Roche as the basis for their respective testing and basis for plaintiff’s diagnosis was faulty, without sound medical and/or scientific confirmation, and an otherwise flawed procedure.
12. Now more than twelve years after the “diagnosis” provided by defendants testing procedures, plaintiff is healthy, asymptomatic, and wholly free of any sequela of HIV or AIDS.
13. CBC and Roche engaged in deceptive acts and practices within the meaning of KCPA, K.S.A. 50-626 as follows:
a. [50-626(b)(1)(A)] making representations knowingly or with reason to know that the goods and/or services included approvals, characteristics, uses and benefits which they did not have;
b. [50-626(b)(1)(B)] making representations knowingly or with reason to know that the supplier had certain approval or status which it did not have;
c. [50-626(b)(1)(D)] making representations knowingly or with reason to know that the goods and/or services were of a standard which was materially different from the representation;
d. [50-626(b)(1)(G)] making representations knowingly or with reason to know that the goods and/or services had uses, benefits or characteristics which had been substantiated when, in fact, they had no such benefits;
e. [50-626(b)(2)] the willful use in oral or written representations of exaggeration, falsehoods, innuendo, or ambiguity as to a material fact; and
f. [50-626(b)(3)] the willful failure to state a material fact or the willful concealment, suppression or omission of a material fact.

14. Defendants CBC and Roche engaged in unconscionable acts and practices within the meaning of the K.S.A. 50-627 as follows:
a. [50-627(b)(1)] taking advantage of the consumer’s inability to protect her interests resulting from an inability to understand the language of the relevant “agreement.”
b. [50-627(b)(6)] making misleading statements of opinion on which plaintiff relied to her detriment; and
c. [50-627(b)(7)] excluded or attempted to exclude the implied warranty of fitness for a particular purpose, to wit: that the product or service was an accurate measure for the diagnosis of HIV/AIDS.

15. As a consequence of the unlawful denials by CBC and Roche of the warranty claims, plaintiff has incurred losses, including but not limited to: loss of income.
WHEREFORE, plaintiffs pray for judgment as follows:
a. civil penalties of ten thousand dollars ($10,000.00) for each violation of the KCPA against each of the defendants;
b. injunctive relief prohibiting the defendants from further representations asserting the suitability of the subject test products/services; and
c. pecuniary damages suffered as a consequence of the misdiagnosis including loss of wage/earnings;
d. non-pecuniary damages including mental anguish, pain and suffering, shame and humiliation resulting from the defendants’ unlawful acts;
d. attorney fees pursuant to the Kansas Consumer Protection Act;
together with their costs, and such other and further relief as the Court shall deem just and equitable.

I am a plaintiff in the matter captioned above, have read and understood the allegations contained therein, and do upon my oath state that the allegations made are true and correct to the best of my knowledge and belief.

© Copyright Sunday, February 18, 2007: Alberta Reappraising AIDS Society.

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