A Second Circuit panel on Wednesday refused to grant an investor in medical equipment firm Kimberly-Clark Corp. a second chance to argue that the company had knowingly touted a surgical gown that failed quality control testing.

The per curiam decision, from a three-judge panel of the U.S. Court of Appeals for the Second Circuit, upheld a lower court’s ruling that an amended complaint against Kimberly-Clark and its spinoff Halyard Health Inc. would have been futile because the plaintiff had not alleged that the companies intended to make allegedly false statements regarding Halyard’s MicroCool Breathable High Performance Surgical Gown, which is used for treating patients with highly infectious diseases.