Carolyn Lewis v. Johnson & Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 2:12-cv-04301, 2:12-md-02327. Copies to all parties and the district court. [999537345]. [14-1244]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1244

CAROLYN LEWIS,
Plaintiff - Appellant,
and
KENNETH LEWIS; AUGUSTINA BROWN-SINGLETARY; ANDRE SINGLETARYSMITH; KARIN HARRISON; ROBERT HARRISON; PATRICIA HEADRICK;
DARRELL HEADRICK; KATIE USZLER; NICK USZLER; KELLY YOUNG;
KENNETH YOUNG,
Plaintiffs,
v.
JOHNSON & JOHNSON; ETHICON, INC.,
Defendants - Appellees,
and
ETHICON WOMEN’S HEALTH
MEDICAL SYSTEMS, INC.,

AND

UROLOGY;

GYNECARE;

AMERICAN

Defendants.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Joseph R. Goodwin,
District Judge. (2:12-cv-04301; 2:12-md-02327)

Argued:

January 27, 2015

Decided:

March 2, 2015

Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.

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Affirmed by unpublished per curiam opinion.

ARGUED: Adam Steffen Davis, WAGSTAFF & CARTMELL LLP, Kansas
City, Missouri, for Appellant. David B. Thomas, THOMAS COMBS &
SPANN, PLLC, Charleston, West Virginia, for Appellee. ON BRIEF:
Julie L. Rhoades, MATTHEWS & ASSOCIATES, Houston, Texas, for
Appellant. Charles C. Lifland, Los Angeles, California, Stephen
D. Brody, David K. Roberts, O'MELVENY & MYERS LLP, Washington,
D.C.; Philip J. Combs, THOMAS COMBS & SPANN, PLLC, Charleston,
West Virginia; Christy D. Jones, BUTLER SNOW LLP, Ridgeland,
Mississippi, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Texas

resident

Carolyn

Lewis

brought

this

diversity

products liability suit against Ethicon, Inc., a subsidiary of
Johnson & Johnson.

She seeks damages for injuries allegedly

resulting from tension-free vaginal tape (TVT) manufactured by
Ethicon.

Lewis appeals the grant of summary judgment on her

failure-to-warn claim, and the judgment as a matter of law on
her design defect claim.

We affirm.

I.
In
with

2009,

stress

urine

urinary

leakage

tests,

Dr.

urogynecologist

incontinence

during

Boreham

Muriel

physical

Boreham

(SUI),

a

exertion.

recommended

the

diagnosed

condition
After

insertion

a

of

Lewis

causing

series
a

TVT

of

mesh

device to correct the SUI.
In October of that year, Dr. Boreham implanted a TVT in
Lewis.
“was

At a follow-up visit, Dr. Boreham told Lewis that she
healing”

and

implied

activity with her husband.

that

Lewis

could

resume

sexual

Lewis attempted to do so, but found

that she suffered from pain during sexual activity. She also
developed

intermittent

pelvic

pain

during

daily

activities.

Lewis never returned to or further consulted with Dr. Boreham.
Almost three years later, on July 25, 2012, Lewis filed
this

action

in

the

Northern
3

District

of

Texas,

seeking

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compensatory

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and

punitive

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damages.

Pursuant

to

the

Multidistrict Litigation Statute, 28 U.S.C. § 1407, the case was
later transferred to the Southern District of West Virginia.
Prior

to

Philippe

trial,
Zimmern

in
to

May

2013,

discuss

her

Lewis

visited

symptoms.

urologist

Dr.

Zimmern

Dr.
told

Lewis about the option of “explant” surgery to remove parts of
the

TVT.

Lewis

elected

to

have

the

procedure.

After

Dr.

Zimmern performed the surgery in September 2013, Lewis’s pain
decreased noticeably, but she was still not “a hundred percent
better.”
In December 2013, Ethicon moved for summary judgment, which
the district court granted as to Lewis’s failure-to-warn claim.
At trial on her remaining claims, Lewis presented testimony from
current and former Ethicon employees and from five experts.

At

the conclusion of Lewis’s case, the court requested briefing on
the

possibility

briefed

the

of

issue

a
and

directed
the

verdict.

district

court

After
heard

the

parties

argument,

it

directed a verdict for Ethicon on Lewis’s design defect claim.
Lewis noted a timely appeal.

II.
We

first

address

the

district

court’s

grant

judgment to Ethicon on Lewis’s failure-to-warn claim.

4

of

summary

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A.
We review a district court’s grant of summary judgment de
novo.

Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013).

In so doing, we apply the same legal standards as the district
court.

We view the evidence in the light most favorable to the

non-moving party, and affirm the grant of the motion only where
there is no genuine dispute as to a material fact and the moving
party is entitled to judgment as a matter of law.

See Nader v.

Blair, 549 F.3d 953, 958 (4th Cir. 2008).
To

prevail

on

a

failure-to-warn

claim

under

Texas

law,

which the parties agree applies in this case, a plaintiff must
show

both

that

the

warning

was

inadequate,

and

that

the

inadequate warning “was a producing cause of the plaintiff’s
condition or injury.”

Porterfield v. Ethicon, Inc., 183 F.3d

464, 468 (5th Cir. 1999) (per curiam) (applying Texas law).
establish

a

warning’s

“producing

alleged

prescribing

cause,”

a

inadequacies

physician[’s]

plaintiff
“would

decision

to

must

have

show

that a

changed

prescribe”

the

To

[the]
device.

Centocor, Inc. v. Hamilton, 372 S.W.3d 140, 172 (Tex. 2012).
Under Texas law, a device manufacturer’s duty to warn of risks
extends

only

to

the

physician

prescribing

the

device,

“the

learned intermediary,” and not to the “end user” of the device.
Id.

at

157.

When

a

plaintiff

offers

no

evidence

that

a

different warning would have changed her physician’s decision to
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prescribe a device, the inadequate warning cannot have caused
Id. at 170-71. 1

the plaintiff’s injury.

B.
Lewis presented no evidence that Dr. Boreham relied on the
warning in Ethicon’s patient brochure in deciding to prescribe
the TVT.

Dr. Boreham herself testified that she did not recall

whether she had a TVT patient brochure at the time of Lewis’s
surgery, and that if she had one, she might have given it to
Lewis or used the picture of the procedure in the brochure to
explain how the device works.

Dr. Boreham further stated that

she would not have verified the accuracy of the information in
the

brochure.

Boreham

None

considered

of

the

this

testimony

patient

brochure

establishes
warning,

that
let

Dr.

alone

relied on it, in deciding to prescribe the TVT to Lewis.

1

Citing McNeil v. Wyeth, 462 F.3d 364, 373 (5th Cir. 2006),
Lewis argues that a plaintiff may prevail on a failure-to-warn
claim by showing that a stronger warning would have led the
plaintiff to withhold consent to the procedure.
But McNeil
explicitly acknowledges that the relevant test is whether the
“alleged inadequacy caused [the plaintiff’s] doctor to prescribe
the drug.”
462 F.3d at 372 (quotations and citation omitted).
And McNeil certainly does not alter the rule that courts must
look to the prescribing doctor’s behavior in deciding whether
the inadequate warning is the “producing cause” of a plaintiff’s
injury.
Moreover, the Supreme Court of Texas recently
reaffirmed that the inquiry under Texas law remains whether the
warning would have changed the decision of the prescribing
physician.
Centocor, 372 S.W.3d at 170; see also Ackermann v.
Wyeth Pharm., 526 F.3d 203, 208 (5th Cir. 2008).
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Nor did Lewis offer evidence that Dr. Boreham relied on the
TVT’s instructions for use in deciding to prescribe the device.
Although Dr. Boreham testified that she had read the document
during her surgical fellowship in 2002, she stated that she did
not read it again before prescribing the TVT to Lewis in 2009.
Moreover, when asked whether she relied on the instructions for
use in prescribing the TVT, Dr. Boreham answered:
Dr.

Boreham

symptoms,
discussions

testified

bladder

that

diary,

regarding

her

she

instead

urodynamics,
desired

“I did not.”

relied

on

physical

outcomes

in

Lewis’s

exam,
deciding

and
to

prescribe the TVT.
This
inadequate
prescribed”

evidence
warning,”
the

TVT.

does
Dr.

not

establish

Boreham

Ackermann,

omitted) (emphasis added).

that

“but

for

not

have

used

“would
526

F.3d

at

208

the
or

(quotation

When a physician relies on her own

experience and examination of a patient in deciding to prescribe
a device, and not on the device’s warning, the warning is not
the cause of the patient’s injury.
The Fifth Circuit, applying Texas law, has so held.

In

Pustejovsky v. PLIVA, Inc., the court upheld a grant of summary
judgment to the defendants on a failure-to-warn claim where the
prescribing physician testified that she had not read or relied
on the medical device’s package insert.
Cir. 2010).

623 F.3d 271, 277 (5th

Similarly, in Porterfield, the court upheld a grant
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of summary judgment to a surgeon who testified that he had not
read the device’s instructions for use or any other literature
from the manufacturer.

183 F.3d at 468.

Lewis attempts to

distinguish these cases on the basis that Dr. Boreham did, at
one

time,

read

the

instructions

for

use,

but

she

offers

no

evidence to rebut Dr. Boreham’s own testimony that she did not
rely on the document in deciding to prescribe the TVT.
Accordingly, we agree with the district court that Lewis
did not offer sufficient evidence to create a dispute as to
material fact regarding whether a different warning would have
changed Dr. Boreham’s decision to prescribe the TVT.

III.
We next address Lewis’s challenge to the district court’s
exclusion of parts of Dr. Uwe Klinge’s expert opinion testimony.
Lewis argues that the court erroneously prevented Dr. Klinge
from connecting his observations about the condition of Lewis’s
mesh with her pain.

We review evidentiary rulings, including

rulings on the admissibility of expert testimony, for abuse of
discretion.

United States v. Davis, 690 F.3d 226, 257 (4th Cir.

2012).

When

reviewing

opinion

testimony,

the

a

district
Supreme

court’s

Court

has

rulings

on

instructed

expert
that

“deference . . . is the hallmark of abuse-of-discretion review.”
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997).
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trial,

Ethicon

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moved

to

exclude

portions

Klinge’s expert report related to the TVT mesh.

of

Dr.

It did so on

the grounds that Dr. Klinge, a former hernia specialist and not
a pathologist, was unqualified to offer expert testimony on that
issue,

and

that

his

testimony

court granted the motion.

was

unreliable.

The

district

It found that Dr. Klinge’s testimony

was unreliable, noting that his report did not explain how he
had selected the TVT samples on which his opinions were based
and did not indicate that his analysis “controlled for error or
bias.”
At trial, Ethicon again raised these issues at sidebars and
in objections, including a continuing objection, throughout Dr.
Klinge’s direct examination.

Although the court allowed Dr.

Klinge to testify regarding the general characteristics of mesh
samples explanted from Ms. Lewis, it concluded that Dr. Klinge
was

not

qualified

causation.
objections.
the

ruling

to

offer

testimony

regarding

specific

On this basis, it sustained several of Ethicon’s
Lewis challenges three of these rulings:
preventing

Dr.

Klinge

from

opining

on

first,
whether

“entrapped nerves in this slide . . . would indicate chronic
pain for Ms. Lewis”; second, the striking of Dr. Klinge’s answer
to the question whether plaintiff’s slides “would relate to any
complications of pain in Ms. Lewis”; and third, the striking of

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Dr. Klinge’s opinion that loose particles from the TVT “can very
good explain the manifestation of pain” in Ms. Lewis.
The district court did not abuse its discretion in making
these rulings.
not

Dr. Klinge was a specialist in hernia surgery,

pathology

receive

or

training

stress
or

urinary

incontinence.

board-certification

in

He

did

pathology.

not
Dr.

Klinge had never treated Lewis, performed surgery to treat SUI,
or collected and studied mesh explants from SUI patients.

The

district court was clearly within its discretion in concluding
that

Dr.

Klinge’s

opinions

regarding

Lewis’s

pain

and

mesh

explant were beyond his area of expertise, and so did not abuse
its

discretion

in

excluding

those

portions

of

Dr.

Klinge’s

testimony.

IV.
Finally, we consider Lewis’s contention that the district
court erred in directing a verdict for Ethicon on her design
defect claim.
A.
We review the grant of a motion for a directed verdict de
novo.

Teague v. Bakker, 35 F.3d 978, 985 (4th Cir. 1994).

“[T]he

test

is

essentially

whether,

without

weighing

the

evidence or considering the credibility of the witnesses, there
can be but one conclusion as to the verdict that reasonable
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jurors

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could

Servs.,

753

have
F.2d

reached.”
1281,

citation omitted).

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Gairola

1285

(4th

Cir.

v.

Va.

Dept.

1985)

of

Gen.

(quotation

and

We affirm “when any verdict in favor of the

nonmoving party necessarily will be premised upon speculation
and conjecture” because “a mere scintilla of evidence is not
enough

to

defeat

a

motion

for

a

directed

verdict.”

Id.

(quotation and citation omitted).
To avoid a directed verdict, “the plaintiff must present
sufficient

evidence

to

establish

a

prima

facie

case.”

Id.

Under Texas law, “[t]o recover for a products liability claim
alleging a design defect, a plaintiff must prove that (1) the
product was defectively designed so as to render it unreasonably
dangerous; (2) a safer alternative design existed; and (3) the
defect

was

a

producing

cause

plaintiff seeks recovery.”

of

the

injury

for

which

the

Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 311 (Tex. 2009).

The district court directed a

verdict for Ethicon based on the third element.
With respect to this element, “[a] plaintiff must establish
a

causal

connection

plaintiff’s

injuries

between
or

the

damages.”

defective
Am.

condition

Tobacco

Co.,

and
Inc.

the
v.

Grinnell, 951 S.W.2d 420, 434 (Tex. 1997) (internal citation,

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alteration, and quotations omitted). 2
product “must

be

a

substantial

That is, the defect in the

factor

in

bringing

about

the

injury, and a cause without which the injury would not have
happened.”

BIC Pen Corp. v. Carter, 346 S.W.3d 533, 541 (Tex.

2011).
Whether expert opinion testimony is necessary to prove a
plaintiff’s theory of causation is a question of law.

Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006).

Texas

law does not always require that an expert conclusively opine
that the
Kindred

defect
v.

in

a

Con/Chem,

product
Inc.,

caused

650

the

S.W.2d

plaintiff’s

61,

63

(Tex.

injury.
1983).

Rather, in many cases, a jury may infer causation, “like any
other ultimate fact,” from circumstantial evidence.

Gladewater

v. Pike, 727 S.W.2d 514, 518 (Tex. 1987).

2

Lewis’s assertion that a plaintiff need merely establish
that the TVT –- and not some defect in it -– caused her injuries
fails. Although, as Lewis notes, a Texas statute codifying the
specific causation requirement in design defect cases does not,
by its own terms, “apply to” medical device cases, the section
also “is not declarative . . . of the common law . . . and shall
not be construed to restrict the courts of this state in
developing the common law with respect to any product which is
not subject to this section.”
Tex. Civ. Prac. & Rem. Code
§ 82.005(d)(2), (e) (2011). The Supreme Court of Texas has been
clear that Texas common law requires a plaintiff in a strict
liability design defect case to show both the defective
condition of a product and a causal connection between that
defect and a plaintiff’s injuries. Lucas v. Tex. Indus., Inc.,
696 S.W.2d 372, 377 (Tex. 1984); Armstrong Rubber Co. v.
Urquidez, 570 S.W.2d 374, 376 (Tex. 1978)).
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However, the Supreme Court of Texas has repeatedly made
clear that “[e]xpert testimony [on causation] is required when
an issue involves matters beyond jurors’ common understanding.”
Mack Trucks, 206 S.W.3d at 583.

In a products liability case,

proof other than expert testimony provides sufficient evidence
of causation “only when a layperson’s general experience and
common
from

understanding
the

evidence,

would
with

enable

the

reasonable

layperson
probability,

relationship” between the defect and the injury.

to

determine

the

causal

Id. at 583.

For example, in Mack Trucks, the Supreme Court of Texas
required expert testimony to establish causation because a “lay
juror’s general experience and common knowledge do not extend to
whether design defects such as those alleged in this case caused
the releases of diesel fuel during a rollover accident.”
S.W.3d

at

583.

Similarly,

in

BIC

Pen,

that

court

206

required

expert testimony to establish causation because “the impact of
[defects

in

a

lighter]

on

how

[the

lighter]

would

have

functioned in the hands of a child . . . is not an issue within
a lay juror’s general experience and common understanding.”

346

S.W.3d at 542.
Texas courts have regarded expert testimony on causation as
particularly vital in cases involving complex medical devices
and medical diagnoses.
expert

testimony

is

“The general rule has long been that

necessary
13

to

establish

causation

as

to

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medical conditions outside the common knowledge and experience
of jurors.”

Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007);

see also Anderson v. Siemens Corp., 335 F.3d 466, 475 (5th Cir.
2003) (applying Texas law) (“[o]rdinarily, expert testimony is
needed to satisfy the reasonable medical probability standard
for establishing a causal link.”).
B.
Here, Lewis alleges that the TVT’s heavyweight, small-pore
mesh

caused

degradation,

scar

tissue,

and

nerve

entrapment,

which in turn caused her pelvic pain and dyspareunia.

She also

alleges that the mechanical cutting of the TVT’s mesh caused
loose particles, which in turn caused her injuries.
of

these

defects

caused

Lewis’s

pain

involves

Whether any
complex

and

technical medical issues beyond common knowledge and experience.
We

therefore

agree

with

the

district

court

that

Texas

law

required Lewis to present expert testimony establishing a causal
link between these alleged defects in the TVT and her injuries.
We also agree with the district court that Lewis’s failure
to present such expert testimony doomed her design defect claim.
Not one of Lewis’s expert witnesses opined, let alone opined to
a reasonable degree of medical certainty, that a defect in the
TVT caused Lewis’s injuries.

Dr. Zimmern testified that the

“presence” of the TVT caused Lewis’s pain, but did not testify
that a defect in the TVT caused her pain.
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Moreover, he could

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not identify what characteristic of the TVT, defective or not,
caused her pain.
Lewis’s

pain,

guess. . . .
Dr.

When asked what property of the TVT caused
Dr.

Zimmern

answered:

“It’s

anybody’s

We really don’t know the answer to that question.”

Bruce

insufficient.

Alan

Rosenzweig’s

testimony

was

similarly

He testified that “small particles” from a TVT

“can fall off into the vagina,” and that these particles “can
migrate

and

cause

pain

during

intercourse.”

However,

Dr.

Rosenzweig did not testify that this happened in Lewis’s case.
In fact, he acknoweledged that he had never examined or treated
Lewis, and that his opinions were not specifically about her.
As the district court explained, evidence “that a product can
cause injuries is insufficient to show that it did cause those
injuries in a particular case.”

See also BIC Pen, 346 S.W.3d at

545 (“specific causation involves whether the substance at issue
in fact caused the particular injury at issue.”).
The

same

shortcoming

Klosterhalfen’s testimony.

characterizes

Dr.

Bernd

He opined that he “found in most

meshes of patients suffering chronic pain . . . destructive or
damaged nerve structures [or] nerve fibers in the interface of
the mesh, just by contact of the mesh to the nerve fiber.”

But

his testimony failed to establish a causal link between a defect
in Lewis’s TVT and Lewis’s injuries.

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Nor
between

did
a

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Dr.

defect

Howard
in

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Jordi’s

Lewis’s

TVT

testimony
and

her

establish
pain.

a

Dr.

link
Jordi

testified to a reasonable degree of scientific certainty that
the TVT degraded in Lewis’s body and that what remained would
continue to degrade.

But Dr. Jordi did not testify that this

degradation, or any effect of it, caused Lewis’s pain.
Finally, the testimony of Lewis’s fifth expert, Dr. Klinge,
did not satisfy the reasonable medical probability standard that
a design defect in the TVT caused Lewis’s pain.

Although Dr.

Klinge opined that loose particles from the TVT “can very good
explain the manifestation of pain” in Lewis, the district court
did not abuse its discretion, as explained above, in finding him
unqualified to share this opinion with the jury.
Lewis does not argue that the remaining testimony -- by,
for

instance,

causation.

employees

of

the

defendant

--

establishes

Thus, because Lewis failed to proffer any expert

testimony that a defect in the TVT caused her pelvic pain, the
district court did not err in directing a verdict for Ethicon.

V.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

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