Being accused of using patients in an unauthorized, high risk clinical trial is a serious charge. Until this is concluded, the development of the Xclose is under a regulatory cloud.

This situation also gives the device industry a look into the new, kinder, gentler FDA that has promised to take its job of "promoting" public health as seriously as "protecting" the public health.

This is the second time in the last couple of years that a high profile spine company in Minnesota has gotten on the wrong side of the FDA. Split Rock is a well seasoned and regarded fund in the medical device industry and has participated in four rounds of financing to support Anulex.

Anulex officials and consultants spoke to OTW to review technical issues about the device. The company issued the following statement on February The post-market study and wide usage outside the study has not resulted in reported occurrence of any patient safety issues or adverse events beyond those anticipated for procedures involving suturing in general and orthopedic surgeries.

If the company is still unsuccessful after passing through Shuren and Hamburg, then the final recourse is to go to their congressional representatives in Minnesota.

The FDA determined that the trial designed by Anulex for the Xclose, was for the purpose of "annulous fibrosus repair, " which the agency considers a Class III device and therefore needs to go through the PMA premarket approval process.

The agency says Anulex permitted "a significant risk device" to be implanted in the subjects enrolled in this study prior to submission to FDA and approval of an IDE application.

We asked individuals close to the company if the company had specifically identified "annulus fibrous repair" as an indication to the FDA in the k submission.

The answer was no and the company believes such repair falls under the cleared indication of "for use in soft tissue approximation for procedures such as general and orthopedic surgery.

Just a couple of weeks ago, the Financial Times reported that President Obama said his administration would focus on modernizing the FDA.

Mark DuVal, an attorney who has represented the company before the FDA says it's not unreasonable that scientists can disagree about these matters.

What matters now is how reasonable the FDA is in dealing with Anulex's appeal. He says the "hassle" factor has increased for his clients with the FDA in the last couple of years and noted that the Minneapolis FDA office has doubled in size to over employees over that time.

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