Kelly et al v. Ethicon, Inc. et al
MEMORANDUM OPINION AND ORDER: Plaintiffs' 83 Motion for Leave to Take the Deposition of Randall Bremner, M.D. is denied, plaintiffs 84 Motion to Reconsider and Amend this Courts Memorandum Opinion and Order on Defendants Motion for Summary Judgment is denied, and defendants 82 Motion for Leave to File Supplemental Motion for Summary Judgment on the Statute of Limitations is granted. Defendants have 14 days from the publication date of this Order to file their supplemental motion for summary judgment and corresponding brief. Plaintiffs have 14 days from the date defendants file their brief to submit a resistance brief. Defendants have seven days from the date plaintiffs file their resistance to submit a reply brief. Signed by Judge CJ Williams on 10/16/2020. (jjh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
SUSAN KELLY; and TIMOTHY
ETHICON, INC.; and JOHNSON &
TABLE OF CONTENTS
INTRODUCTION ......................................................................... 3
RELEVANT BACKGROUND ........................................................... 3
PLAINTIFFS’ MOTION FOR LEAVE TO TAKE THE DEPOSITION OF
RANDALL BREMNER, M.D. .......................................................... 6
Applicable Law ...................................................................... 6
Analysis ............................................................................... 7
PLAINTIFFS’ MOTION TO RECONSIDER THIS COURT’S ORDER ON
DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ........10
Applicable Law .....................................................................10
Strict Liability for Design Defect .......................................12
Negligent Failure to Warn ...............................................14
Application of the Learned Intermediary Doctrine ..........14
Exception to the Learned Intermediary Doctrine.............16
Post-Sale Duty to Warn ..........................................18
Fraud-Based Claims .......................................................22
Negligent Misrepresentation .............................................21
Loss of Consortium........................................................22
DEFENDANTS’ MOTION FOR LEAVE TO FILE SUPPLEMENTAL
MOTION FOR SUMMARY JUDGMENT ON THE STATUTE OF
Applicable Law .....................................................................23
This matter is before the Court on plaintiffs Susan Kelly (“plaintiff”) and Timothy
Kelly’s (“Timothy”) (collectively “plaintiffs”) Motion for Leave to Take the Deposition
of Randall Bremner, M.D. (“Dr. Bremner”) (Doc. 83) and plaintiffs’ Motion to
Reconsider and Amend this Court’s Memorandum Opinion and Order on Defendants’
Motion for Summary Judgment (Doc. 84). As to both motions, defendants Johnson &
Johnson and Ethicon, Inc. (“Ethicon”) timely resisted and plaintiffs timely replied.
(Docs. 87, 88, 89, & 90). For the following reasons, the Court denies both of plaintiffs’
This matter is also before the Court on defendants’ Motion for Leave to File
Supplemental Motion for Summary Judgment on the Statute of Limitations. (Doc. 82).
Plaintiffs timely resisted and defendants timely replied. (Docs. 85 & 86). For the
following reasons, the Court grants defendants’ motion.
The Court will address each motion below in the following order: (1) plaintiffs’
motion for leave to depose Dr. Bremner (Doc. 83); (2) plaintiffs’ motion for
reconsideration (Doc. 84); and (3) defendants’ motion for leave to file a supplemental
motion for summary judgment (Doc. 82).
Plaintiffs have resided in Iowa since at least 1990. (Doc. 38–1, at 3). Johnson &
Johnson and its subsidiary Ethicon are both New Jersey corporations. (Doc. 1-1, at 1).
On March 7, 2004, plaintiff received a tension-free vaginal tape (“TVT”) mesh
implant manufactured by Ethicon. See (Doc. 39, at 2). Plaintiff’s implantation procedure
took place in Waterloo, Iowa. (Id.). Plaintiff received the implant to stabilize her
prolapsed bladder. (Doc. 40-1, at 44). Dr. Bremner performed the procedure. (Doc.
39, at 2).
Plaintiff testified that she does not remember receiving any brochures,
handouts, or other materials about the TVT implant before her surgery, that she did not
know who manufactured the implant, and that she did not rely on any statements by
defendants in selecting it. (Id., at 2–3; Doc. 45, at 3–4). Plaintiff, however, states that
Dr. Bremner failed to inform her of the potential risks posed by the TVT implant and
that she relied on his advice. (Doc. 45, at 3–6). Plaintiff states she was only informed
of the risks posed by the implant procedure and not the TVT implant itself. (Id., at 5).
Plaintiff alleges that, as a result of her TVT implant corroding, oxidizing, or eroding,
she has suffered from, among other things, “depression, pelvic pain, dyspareunia, loss
of services of her spouse, continued and worsening incontinence, [urinary tract
infections], urinary retention, abdominal pain, urgency, frequency, and dysuria.” (Id.,
at 4) (citing plaintiff’s deposition testimony).
On February 28, 2014, plaintiffs filed suit in the multidistrict litigation (“MDL”)
related to defendants’ TVT implant in the United States District Court for the Southern
District of West Virginia.
Plaintiffs asserted 17 claims consisting of:
negligence (Count I); strict liability for a manufacturing defect (Count II); strict liability
for failure to warn (Count III); strict liability for a defective product (Count IV); strict
liability for a design defect (Count V); common law fraud (Count VI); fraudulent
concealment (Count VII); constructive fraud (Count VIII); negligent misrepresentation
(Count IX); negligent infliction of emotional distress (Count X); breach of express
warranty (Count XI); breach of implied warranty (Count XII); violation of consumer
protection laws (Count XIII); gross negligence (Count XIV); unjust enrichment (Count
XV); loss of consortium (Count XVI); and punitive damages (Count XVII). (Id.).1 On
September 17, 2014, plaintiff had part of her TVT implant removed in Iowa City, Iowa
by Dr. Elizabeth Takacs. (Docs. 39, at 2; 45, at 3).
As previously noted, Timothy’s only claim is for loss of consortium. (Doc. 81, at 4 n.1).
On August 9, 2019, defendants moved for partial summary judgment on plaintiff’s
claims for negligence (to the extent it asserted claims for negligent failure to warn or
negligent manufacturing defect) (Count I), strict liability for manufacturing defect (Count
II), strict liability for failure to warn (Count III), strict liability for defective product
(Count IV), strict liability for design defect (Count V), common law fraud (Count VI),
misrepresentation (Count IX), negligent infliction of emotional distress (Count X), breach
of express warranty (Count XI), breach of implied warranty (Count XII), violation of
consumer protection laws (Count XIII), gross negligence (Count XIV), and unjust
enrichment (Count XV). (Doc. 38, at 1). On August 28, 2019, plaintiffs timely filed a
resistance. (Doc. 45).
On June 2, 2020, this case was transferred from the Southern District of West
Virginia to this Court. (Doc. 62). On August 7, 2020, the Court granted in part and
denied in part defendants’ motion for partial summary judgment. (Doc. 81). The Court
granted summary judgment on plaintiff’s claims for negligence (as it relates to negligent
failure to warn and negligent manufacturing defect) (Count I); strict liability for
manufacturing defect (Count II); strict liability for failure to warn (Count III); strict
liability for defective product (Count IV); strict liability for design defect (Count V);
common law fraud (Count VI); fraudulent concealment (Count VII); constructive fraud
(VIII); negligent misrepresentation (Count IX); breach of express warranty (Count XI);
breach of implied warranty (Count XII); violation of consumer protection laws (Count
XIII); and gross negligence (Count XIV). (Id., at 22). It denied summary judgment on
plaintiff’s claims for negligence (as it relates to negligent design) (Count I); negligent
infliction of emotional distress (Count X); and unjust enrichment (Count XV). (Id., at
23). Defendants did not request, and the Court did not grant, summary judgment on
plaintiffs’ claims for loss of consortium (Count XVI) and punitive damages (Count XVII).
PLAINTIFFS’ MOTION FOR LEAVE TO TAKE THE DEPOSITION OF
RANDALL BREMNER, M.D.
Most courts in the Eighth Circuit have analyzed a motion for leave to take a
deposition after the close of discovery under Federal Rule of Civil Procedure 16(b). See,
e.g., Bell v. Mine Safety Appliances, No. 1:13-cv-01075, 2015 U.S. Dist. LEXIS
178459, at *2–3 (W.D. Ark. Nov. 17, 2015); Optimal Interiors, LLC v. Hon Co., No.
3:09-cv-00177-JEG-RAW, 2011 WL 13308179, at *1 (S.D. Iowa Mar. 7, 2011). Rule
16(b) states that a court must issue a scheduling order which sets deadlines for, among
other things, discovery. FED. R. CIV. P. 16(b)(3). Rule 16(b)(4) states that “[a] schedule
may be modified only for good cause and with the judge’s consent.” Thus, courts
generally employ a flexible good cause standard when evaluating a motion for leave to
take a late deposition. See, e.g., Bell, 2015 U.S. Dist. LEXIS 178459, at *2–3 (finding
the defendants did not show good cause); Hon Co., 2011 WL 13308179, at *1 (“When
a dispute arises and a party requests leave to take trial depositions after the discovery
deadline, a certain amount of flexibility in application of [Rule] 16(b)(4) good cause
standard is often in order to assure basic fairness and presentation of a full record to the
“The primary measure of [the] ‘good cause’ standard is the moving party’s
diligence in attempting to meet the [scheduling] order’s requirements.” Bradford v.
DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001) (citing Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992)). Nevertheless, even if the movant
shows good cause, the court “retains discretion as to whether to grant the motion”
because the scheduling order is “a vehicle designed to streamline the flow of litigation
through our crowded dockets.” Id. (citing In re Milk Prods. Antitrust Litig., 195 F.3d
430, 437 (8th Cir.1999)).
Some courts in the Eighth Circuit have, however, applied Federal Rule of Civil
Procedure 60(b) instead of Rule 16(b) in ruling on a motion to take an untimely
deposition. See, e.g., Pippin v. Hill-Rom Co., No. 4:08CV263 TIA, 2008 WL 4911800,
at *1 (E.D. Mo. Nov. 13, 2008) (finding that Federal Rule of Civil Procedure 60(b) “can
allow a party to complete an act [after] the deadline has passed”). Rule 60(b) provides
several different equitable grounds for relief, namely:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
These bases of relief under 60(b), given their equitable nature, are consistent with the
flexible good cause analysis and discretion described by other courts in the Eighth Circuit
discussing Rule 16(b). Thus, the Court’s analysis would be the same under either rule;
the Court must identify some good cause or quality of equity that, in its discretion,
warrants extension of the deposition deadline set in the scheduling order.
Plaintiffs filed their complaint in the MDL on February 28, 2014. (Doc. 1). On
February 4, 2019, the MDL court entered an order setting August 1, 2019, as the
“[d]eposition deadline and close of discovery.” (Doc. 15, at 3). This order also limited
depositions of treating physicians to four, three-hour depositions for each case. (Id., at
4). Despite this opportunity, plaintiffs never deposed Dr. Bremner or any other treating
physician. (Doc. 83-1, at 2 n.1). It is not clear to the Court when plaintiffs were
prompted to begin case-specific discovery. At worst, they had five and a half years from
the date they filed their complaint to depose Dr. Bremner. Even assuming, however,
that plaintiffs could not depose Dr. Bremner until the MDL court’s February 4, 2019
Order, plaintiffs still had half a year to get it done.
On August 9, 2019, after the close of discovery, defendants moved for partial
summary judgment. (Doc. 38). Following transfer, the Court granted in part defendants’
motion for partial summary judgment on August 7, 2020, nearly a year later. (Doc. 81).
Defendants motion for partial summary judgment explicitly pointed out that plaintiffs had
not deposed Dr. Bremner. See, e.g., (Doc. 39, at 7–8). Although it would have been
untimely, plaintiffs did not move to depose Dr. Bremner to supplement the record at any
time before this Court’s summary judgment Order. Now, a month and a half after the
Court’s summary judgment Order, plaintiffs request leave to depose Dr. Bremner. (Doc.
83). On its face, plaintiffs are excessively tardy in requesting Dr. Bremner’s deposition
more than a year after the close of discovery and even after the Court’s summary
judgment Order issued.
Despite this substantial delay, plaintiffs offer little explanation of good cause or
any other viable excuse. First, plaintiffs’ counsel appears to place part of the blame on
his caseload related to the MDL, stating “counsel had a total of twenty-six (26) cases
selected for work-up and litigation within Wave 11 [of the MDL], the majority of which
underwent discovery as best as feasibly possible.” (Doc. 83-1, at 1–2). Counsel’s
personal workload is no excuse. Plaintiffs had an ample opportunity to obtain Dr.
Bremner’s testimony in some form over the course of, at best, six months. In sum,
having other cases to juggle is not good cause for failing to conduct fundamental
discovery and does not warrant backtracking this case.
Second, plaintiffs argue that despite their efforts, they could not locate Dr.
Bremner during the discovery period. (Id., at 2); see also (Doc. 89, at 2–3). On August
10, 2020 (three days after this Court granted partial summary judgment), however,
plaintiffs obtained an address for Dr. Bremner by performing a “skip trace.” (Doc. 831, at 2). On August 14, 2020, plaintiffs sent Dr. Bremner a letter. (Id.). On August
26, 2020, Dr. Bremner responded to plaintiffs and agreed to a potential deposition in
October. (Id.). The Court is highly skeptical that Dr. Bremner could not have been
timely reached during the discovery period with diligent effort. Dr. Bremner was only
partially retired and, thus, must have been publicly accessible to some extent. See (id.).
Even if Dr. Bremner was not easily publicly accessible, plaintiffs fail to explain why a
skip trace could not have been performed earlier or why social media, public records, or
other documents failed to yield any means of contacting him. That plaintiffs were able
to find Dr. Bremner’s address three days after this Court’s Order itself indicates Dr.
Bremner could have been contacted with reasonable effort and, it appears, would have
agreed to being deposed. Thus, this excuse also does not constitute good cause.
Last, plaintiffs reiterate that Dr. Bremner’s testimony is pivotal to some of their
claims. (Doc. 83-1, at 2–3, 4). This is undoubtedly true. The Court granted summary
judgment on several claims in part because the record did not contain any evidence of
Dr. Bremner’s decisions and conduct regarding the TVT implant. The Court’s concern
here is not, however, whether Dr. Bremner’s deposition would be duplicative,
burdensome, or costly as plaintiffs discuss. (Id., at 4–6). Rather, the Court’s concern
is plaintiffs’ failure to take Dr. Bremner’s deposition in a timely fashion. Plaintiffs note
that “the issues in this case have been litigated for more than six (6) years” and thus, they
should “have the opportunity to obtain complete evidence.” (Id., at 6). As discussed,
plaintiffs have failed to show good cause as to why this deposition could not have taken
place at any time during discovery. In other words, plaintiffs had their opportunity to
complete the evidence, but failed to seize it.
Indeed, it would be highly prejudicial to defendants to backtrack a year’s worth of
litigation by undoing the Court’s grant of partial summary judgment, reinstating some of
plaintiffs’ claims, and requiring defendants to participate in a deposition that could have
taken place a year and a half ago or more.
The additional discovery plaintiffs seek from Dr. Bremner also does not warrant
his untimely deposition. See (id., at 4–5). In its summary judgment Order, the Court
noted that plaintiffs’ failure to depose Dr. Bremner, although serious, was not inherently
fatal because other evidence could exist—such as a note or publication authored by Dr.
Bremner about TVT implants—which could indicate that Dr. Bremner would have
changed his decision if given different warnings. (Doc. 81, at 10–11). The Court
concluded, however, that no such evidence existed in the record. (Id., at 11). Now,
plaintiff argues she should be able to depose Dr. Bremner to discover whether such notes
or publications exist. (Doc. 84-1, at 6–7). The Court declines to stretch its hypothetical
discussion into a basis for purely speculative discovery. See (Doc. 83-1, at 4–5) (stating
that plaintiff has no reason to believe these documents even exist—in fact, the opposite);
(Doc. 89, at 3) (“It is highly unlikely that this information even exists.”). As discussed
above, the Court finds that plaintiffs’ failure to depose Dr. Bremner before the close of
discovery does not warrant re-opening these already resolved issues.
In sum, the Court finds that plaintiffs have not shown good cause or any other
equitable reason why the Court should substantially alter the course of this case to allow
plaintiffs to conduct a deposition that they already had an ample opportunity to conduct.
Thus, the Court denies plaintiffs’ motion for leave to depose Dr. Bremner. (Doc. 83).
PLAINTIFFS’ MOTION TO RECONSIDER THIS COURT’S ORDER ON
DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Generally, Federal Rules of Civil Procedure 59(e) and 60(b) apply to a motion to
reconsider a court’s grant of summary judgment. Rule 59(e) enables parties to submit a
motion to alter or amend a judgment within 28 days of the judgment’s entry. “A district
court has broad discretion in determining whether to grant or deny a motion to alter or
amend judgment pursuant to Rule 59(e)[.]” United States v. Metropolitan St. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006). “Rule 59(e) motions serve the limited function
of correcting manifest errors of law or fact[.]” Id. (citation and internal quotation marks
omitted). Rule 59(e) motions should “also be granted where the court overlooked a
factual or legal argument presented by a party, but not where a party failed to present a
relevant factual or legal argument to the court in the first instance.” Stults v. Bush Boake
Allen, Inc., No. C11-4077-MWB, 2014 WL 775525, at *2 (N.D. Iowa Feb. 25, 2014)
(citations and emphasis omitted). Rule 60(b), as discussed above, enables a court to
provide relief from a final judgment in a limited set of circumstances.
Admittedly, “the Federal Rules of Civil Procedure do not seem to provide any
basis for a motion to reconsider [a] court’s granting of a partial summary judgment[.]”
Helm Fin. Corp. v. Iowa N. Ry. Co., 214 F. Supp. 2d 934, 999 (N.D. Iowa 2002)
(emphasis altered). Courts have found, however, that the absence of this relief in the
Federal Rules “means that [the] court actually has more, rather than less, discretion to
alter or amend such an interlocutory order than is provided in either Rule 59(e) or
60(b)[.]” Id. Like the denial of a summary judgment motion, the court retains the power
to reconsider or amend its ruling “up until the time a final judgment is entered.” Id.
Thus, a court has discretion to reconsider challenged portions of an order granting partial
summary judgment. Id. In doing so, a court is not bound by the specifications and
standards of Rules 59(e) and 60(b). EEOC v. Am. Home Prods. Corp., 165 F. Supp. 2d
886, 891–92 (N.D. Iowa 2001) (citations omitted).
Plaintiffs request the Court reconsider or amend its Order on defendants’ Motion
for Partial Summary Judgment in five respects. (Doc. 84-1, at 4–14).2 First, plaintiff
argues that under Iowa law her claim for strict liability for design defect may not be
subsumed by her claim for negligent design defect and thus, she withdraws her
abandonment of this claim.
(Id., at 4–6).
Second, plaintiff argues the learned
intermediary doctrine does not apply to her negligent failure to warn claim, or
alternatively, that exceptions to the doctrine apply, or that defendants violated a post-sale
duty to warn. (Id., at 6–10). Third, plaintiff argues her negligent misrepresentation
claim should be allowed to proceed due to defendants’ alleged misrepresentations or
fraudulent behavior. (Id., at 10–12). Fourth, plaintiff argues she sufficiently stated her
fraud claims. (Id., at 12–13). Last, Timothy appears to request some type of relief
related to his claim for loss of consortium, even though the Court’s Order did not affect
his claim. (Id., at 13–14).
Strict Liability for Design Defect
In response to defendants’ motion for partial summary judgment, plaintiff did not
oppose granting summary judgment on her claim of strict liability for design defect, or
her other two strict liability claims. (Doc. 45, at 7–8). Thus, the Court granted summary
judgment on plaintiff’s claim for strict liability for design defect. (Doc. 81, at 7).
Although Rule 59(e) does not apply here, as plaintiffs agree (Doc. 84-1, at 3–4), the timeliness
of plaintiffs’ motion is still a “valid consideration” that the Court can take into account, see Am.
Home Prods. Corp., 165 F. Supp. 2d at 892 (quoting Deimer v. Cincinnati Sub-Zero Prods.,
Inc., 990 F.2d 342, 346 (7th Cir. 1993) (noting that the movant’s tardiness was still a valid
consideration). Here, plaintiffs filed their motion to reconsider 40 days after the Court granted
in part defendants’ partial motion for summary judgment (Docs. 81 & 84), far outside the usual
28-day window of Rule 59(e). Although the Court declines to incorporate this fact into its
analysis, plaintiffs’ delay in reasserting issues that have already been addressed is detrimental to
a speedy resolution of the remaining claims.
Now, plaintiff argues that her strict liability for design defect claim may not be
subsumed by her negligent design defect claim as previously thought. (Doc. 84-1, at 4–
6). Plaintiff further states, without citation, that “[i]t appears that your Honor is of the
position that [plaintiff]’s Strict Liability – Design Defect claim did not merge with her
Negligent Design claim.” (Id., at 6). Thus, plaintiff “withdraws her abandonment as to
this claim” and asserts it is factually supported by expert testimony. (Id.).
Plaintiff’s argument relies on outdated authority. “The Iowa Supreme Court has
. . . held that design defect claims are not strict liability claims.” Wurster v. Plastics
Grp., Inc., 917 F.3d 608, 615 (8th Cir. 2019) (citing Scott v. Dutton-Lainson Co., 774
N.W.2d 501, 505 (Iowa 2009)). Indeed, in Wright v. Brooke Group, Ltd., the Iowa
Supreme Court stated that “negligence principles are more suitable for” all defective
design cases aside from manufacturing defects, which require a strict liability analysis.
652 N.W.2d 159, 169 (Iowa 2002); see also Scott, 774 N.W.2d at 504 (discussing
Wright). Despite this, the Iowa Supreme Court expressed its reluctance to affix any
doctrinal label to design defect claims. Wright, 652 N.W.2d at 169. Instead, the court
found that negligent design defect and strict liability for design defect were not
meaningfully distinct and should not be presented in tandem to a jury. Id. Thus, when
both design defect theories are asserted, this Court has merged them into a single design
defect claim. See, e.g., Nicholson v. Biomet, Inc., No. 18-CV-3057-CJW-KEM, 2020
WL 3399899, at *19 (N.D. Iowa Mar. 6, 2020).
Plaintiff’s request is moot.
The Court did not grant summary judgment on
plaintiff’s claim for negligent design defect. (Doc. 81, at 12). Thus, even if the Court
accepted plaintiff’s withdrawal of her abandonment of her strict liability for design defect
claim, reversed summary judgment, and reinstated the claim, it would merely merge into
her already viable claim for negligent design defect. Whether this surviving claim is
labelled as negligent design defect or simply design defect is immaterial; both terms are
consistent with Iowa law. See Wright, 652 N.W.2d at 169.
Thus, the Court denies as moot plaintiff’s motion on this issue.
Negligent Failure to Warn
In its Order on defendants’ motion for partial summary judgment, the Court
granted summary judgment on plaintiff’s negligent failure to warn claim because there
was no evidence of proximate causation. (Doc. 81, at 9–12). Specifically, under the
learned intermediary doctrine, the Court found that plaintiff had not shown that different
warnings by defendants would have changed Dr. Bremner’s decision to use the TVT
implant or how he explained the risks to plaintiff. (Id., at 10–12).
Now, plaintiff argues (1) that the learned intermediary doctrine does not apply or,
alternatively, (2) that exceptions to the doctrine apply, or (3) defendants had a continuing
duty to warn even after the sale of the TVT implant. (Doc. 84-1, at 6–10). The Court
will address each argument in turn.
Application of the Learned Intermediary Doctrine
Plaintiff argues the learned intermediary doctrine does not apply here. (Doc. 841, at 6–7) (citing Mercer v. Pittway Corp., 616 N.W.2d 602, 624 (Iowa 2000) (involving
litigation over a smoke detector); Lovick v. Wil-Rich, 588 N.W.2d 688, 700 (Iowa 1999)
(involving litigation over a farm cultivator)). Because plaintiff asserts she would not have
consented to the TVT implant if different warnings were given, plaintiff argues the Court
should reinstate her negligent failure to warn claim. (Id.).
“[I]n the context of prescription medical devices and drugs, Iowa follows the
learned intermediary doctrine.” Willet v. Johnson & Johnson, No. 112-CV-00034-JAJRAW, 2019 WL 7500524, at *2 (applying the learned intermediary doctrine under Iowa
law in a case arising from the same MDL). Although Iowa has not explicitly adopted the
learned intermediary doctrine, its use is firmly established:
Iowa courts have not explicitly adopted the learned intermediary doctrine.
The Iowa Supreme Court has, however, acknowledged the learned
intermediary doctrine and did not prohibit its use. McCormick v. Nikkel &
Assocs., Inc., 819 N.W.2d 368, 375 (Iowa 2012). Federal courts have also
applied the learned intermediary doctrine to Iowa cases and predicted that
Iowa will adopt the doctrine. Petty v. United States, 740 F.2d 1428, 1440
(8th Cir. 1984); Daughetee v. Chr. Hansen, Inc., 960 F. Supp. 2d 849,
870 (Iowa 2013) (“[T]he ‘intermediary’ defense is still viable under Iowa
law.”) (quoting Nationwide Agribusiness Ins. Co. v. SMA Elevator Constr.,
Inc., 816 F. Supp. 2d 631, 653 (N.D. Iowa 2011)). Additionally, the vast
majority of other jurisdictions apply the learned intermediary doctrine.
Centocor, Inc. v. Hamilton, 372 S.W.3d 140, 158 n.17 (Tex. 2012) (stating
the highest courts of at least thirty-five states have adopted a form of the
learned intermediary doctrine and the intermediary courts and federal courts
of additional states apply the doctrine as well). Because the Iowa Supreme
Court has not rejected the learned intermediary doctrine and because other
federal courts within the Eighth Circuit have applied the learned
intermediary doctrine to Iowa cases, the Court finds it is likely Iowa law
supports using the learned intermediary doctrine and will apply it here [to
a failure to warn claim involving a medical device].
Nicholson, 2020 WL 3399899, at *15; see also Madsen v. Am. Home Prods. Corp., 477
F. Supp. 2d 1025, 1033–34 (E.D. Mo. 2007) (citing In re Norplant Contraceptive Prods.
Liab. Litig., 215 F. Supp. 2d 795, 821 (E.D. Tex. 2002)) (“Iowa’s adoption of the
Restatement (Third) of Torts . . . and the overwhelming precedent adopting the learned
intermediary doctrine convinces the Court that the Iowa Supreme Court would recognize
that the [learned intermediary] doctrine governs Plaintiff’s [prescription drug-related]
failure-to-warn claims at issue.”).
Neither of plaintiff’s cited cases are products liability suits involving prescription
drugs or medical devices. Neither of them discusses the learned intermediary doctrine.
Federal courts presiding over products liability claims involving prescription drugs and
medical devices routinely apply the learned intermediary doctrine under Iowa law.
Thus, the Court can do little more than to direct plaintiff back to the law the Court
cited in its prior Order:
Under the learned intermediary doctrine, a manufacturer of
prescription drug or medical device need not provide warnings directly to
patients using its products so long as adequate warnings were given to the
health care provider supplying the products to patients. RESTATEMENT
(THIRD) OF TORTS § 6 cmt. e; see also Daughetee, 960 F. Supp. 2d at 869–
70. When a manufacturer supplied warnings to the health care provider,
the plaintiff must show different or additional warnings were necessary and
would have altered the health care provider’s decision to supply the product
at issue. Willet v. Johnson & Johnson, No. 1:12-CV-00034-JAJ-RAW,
2019 WL 7500524, at *2–3 (S.D. Iowa Sept. 30, 2019). Indeed, to
establish proximate causation, “the plaintiff must show that a proper
warning would have changed the decision of the treating physician, i.e.,
that but for the inadequate warning, the treating physician would not have
used or prescribed the product.” Wessels v. Biomet Orthopedics, LLC, No.
18-CV-97-KEM, 2020 WL 3421478, at *14 (N.D. Iowa June 22, 2020)
(citations and quotation marks omitted).
(Doc. 81, at 9–10). This case involves a medical device and Dr. Bremner is a learned
intermediary. Thus, the conduct relevant to plaintiff’s failure to warn claim is Dr.
Bremner’s conduct, not her own conduct. As the Court previously found, the record
contains insufficient evidence on Dr. Bremner’s conduct and thus fails to establish
proximate causation between the alleged inadequacy of the warnings and plaintiff’s
alleged harm. In short, plaintiff’s authority is inapplicable, and the Court sees no error
in its application of the learned intermediary doctrine or its conclusion.3
Exception to the Learned Intermediary Doctrine
Plaintiff argues that, even if the learned intermediary doctrine applies, an
“exception” applies that prevents its use here. (Doc. 84-1, at 7–8). Plaintiff argues that,
Plaintiff also embeds an argument here that she should be allowed to depose Dr. Bremner.
(Doc. 84-1, at 6–7). This argument is copy and pasted from plaintiffs’ motion to depose Dr.
Bremner. (Doc. 83-1, at 4–5). The Court rejects this argument for the reasons discussed above.
if she is allowed to depose Dr. Bremner, Dr. Bremner will “likely . . . testify that he
was not informed and did not independently know about several defective characteristics
of the TVT device that Defendants knew about.” (Id., at 7). Plaintiff then cites Ehlis v.
Shire Richwood, Inc., 367 F.3d 1013 (8th Cir. 2004) for the apparent proposition that
Dr. Bremner’s lack of independent knowledge of these risks makes defendants liable
despite the learned intermediary doctrine. (Id., at 8).
As the Court discussed above, there is no just reason why plaintiffs should be
allowed to depose Dr. Bremner far past the close of discovery, not to mention after the
summary judgment stage. Even if they were able to depose Dr. Bremner, speculation
about what his testimony might be is an inadequate reason to reinstate plaintiff’s claim.
Even if Dr. Bremner offered the speculated testimony, plaintiff misconstrues the
holding in Ehlis to constitute an exception in her favor. In Ehlis, the Eighth Circuit Court
of Appeals stated:
Under the learned intermediary doctrine, the manufacturer’s failure
to provide the physician with adequate warnings of the risks associated with
a particular prescription product “is not the proximate cause of a patient’s
injury if the prescribing physician had independent knowledge of the risk
that the adequate warning should have communicated.” Christopher v.
Cutter Labs., 53 F.3d 1184, 1192 (11th Cir. 1995). “Thus, the causal link
between a patient’s injury and the alleged failure to warn is broken when
the prescribing physician had ‘substantially the same’ knowledge as an
adequate warning from the manufacturer should have communicated to
367 F.3d at 1016. In other words, the presence of a physician’s independent knowledge
prevents the manufacturer from being held liable because the physician was already aware
of the product’s risks, regardless of the adequacy of the manufacturer’s warnings. See,
e.g., Christopher, 53 F.3d at 1197–98 (discussing another case and stating “the drug
manufacturer could not be penalized for the failure of the doctor to impart knowledge
concerning the dangers of the drug of which the doctor had been warned and was aware”).
On the other hand, the absence of such knowledge is not an exception to the learned
intermediary doctrine and does not preclude its application.4 5
Post-Sale Duty to Warn
Plaintiff also argues that her negligent failure to warn claim encompasses a postsale duty to warn claim. (Doc. 84-1, at 8–10). Although plaintiff acknowledges that
defendants notified medical facilities by letter after the Food and Drug Administration
issued safety alerts for the TVT implant, plaintiff asserts defendants still “withheld certain
information.” (Id., at 9). Plaintiff cites defendants’ internal emails as evidence that
defendants were aware of certain deficiencies in the TVT implant. (Id., at 10). These
facts, plaintiff argues, show defendants violated their post-sale duty to warn.
Under Iowa law, a seller of products “is subject to liability for harm to persons or
property caused by the seller’s failure to provide a warning after the time of sale or
distribution of a product if a reasonable person in the seller’s position would provide such
a warning.” Wurster, 917 F.3d at 617 (quoting Lovick, 588 N.W.2d at 694); see also
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 10. A reasonable seller would
issue a warning if:
(1) the seller knows or reasonably should know that the product poses a
substantial risk of harm to persons or property; and
Plaintiff also cites Ehlis for the proposition that North Dakota and Iowa apply the Restatement
(Second) of Torts Section 2A. (Doc. 84-1, at 8). Section 2A does not exist. It appears plaintiff
means Section 402A, the only section discussed in Ehlis about products liability. See Ehlis, 367
F.3d at 1017 (citing RESTATEMENT (SECOND) OF TORTS § 402A). Iowa abandoned Section 402A
approximately 18 years ago in favor of using the Third (Restatement) of Torts in products liability
cases. Wright, 652 N.W.2d at 162, 182; see also Wurster, 917 F.3d at 617.
Plaintiff also notes that the Court found that her expert was qualified to testify about the
adequacy of defendants’ warnings. (Doc. 84-1, at 7–8). The Court’s Order on the admissibility
of the parties’ expert testimony was entered before its Order on defendants’ motion for partial
summary judgment. (Docs. 80 & 81). Thus, although plaintiff’s expert is qualified to opine on
this topic, the adequacy of the warnings is no longer relevant in light of the Court’s grant of
summary judgment on this claim.
(2) those to whom a warning might be provided can be identified and can
reasonably be assumed to be unaware of the risk of harm; and
(3) a warning can be effectively communicated to and acted on by those to
whom a warning might be provided; and
(4) the risk of harm is sufficiently great to justify the burden of providing a
Wurster, 917 F.3d at 617 (quoting Lovick, 588 N.W.2d at 694). Although a jury is
usually best suited to determine whether a warning should have been issued, a court may
find that no duty existed under certain circumstances. Id. “[E]vidence that a seller is on
notice of a defect may be offered to prove that the seller breached its duty to warn.”
Ahlberg v. Chrysler Corp., 481 F.3d 630, 633 (8th Cir. 2007).
As an initial matter, plaintiff never previously raised a post-sale duty to warn
violation, at least explicitly. Neither her complaint nor her resistance to defendants’
motion for partial summary judgment discuss such a duty or defendants’ internal emails.
(Docs. 1 & 45). Although her resistance alleged that defendants “withheld known risks,”
plaintiff only discussed this issue in the pre-sale context. See, e.g., (Doc. 45, at 12).
Thus, plaintiff’s current post-sale failure to warn claim appears to be a belated
reinterpretation of her original claim. This alone is a sufficient reason to deny her claim,
see Stults, 2014 WL 775525, at *2–3, but the Court will proceed to the merits.
The Court is not aware of, and plaintiff does not cite, any case involving a postsale failure to warn claim related to a prescription drug or medical device under Iowa
law. Generally, though, products liability actions under Iowa law require some proof of
causation. See Lovick, 588 N.W.2d at 700 (“The plaintiff in a products liability action
must establish a causal relationship between the alleged negligence and injury. This
requires a showing that the manufacturer’s conduct was a substantial factor in the
injury.”) (citation omitted). Thus, like plaintiff’s original failure to warn claim, she must
show proximate causation as to her post-sale failure to warn claim under the learned
intermediary doctrine as well. See id. (noting the need to establish proximate cause in
a failure to warn claim); In re Mentor Corp. ObTape Transobturator Sling Prods. Liab.
Litig., No. 4:14-cv-113 (Morgan), 2016 WL 7209431, at *3 (M.D. Ga. Dec. 9, 2016)
(holding that the learned intermediary doctrine applied under Florida law and that the
relevant inquiry was whether post-sale warnings would have affected the implanting
physician’s conduct in a post-sale failure to warn claim involving a suburethral sling); In
re Cook Med., Inc. IVC Filters Mktg., Sales Pracs. & Prod. Liab. Litig., No. 1:14-ml02570-RLY-TAB, 2018 WL 6415585, at *4 (S.D. Ind. Dec. 5, 2018) (holding the same
under Georgia law in an action involving a blood clot filter).
Plaintiff’s post-sale failure to warn claim, therefore, fails for the same reasons her
original claim failed. Plaintiff cannot show, in the absence of Dr. Bremner’s testimony
or some similar form of evidence, that any additional or different post-sale warnings
beyond those already issued would have changed Dr. Bremner’s conduct. Even if the
Court examined plaintiff’s conduct instead, plaintiff has not offered any evidence that
defendants could have identified her as a purchaser of the TVT implant and thus warned
See Wurster, 917 F.3d at 617.
Despite the evidence plaintiff offers
concerning defendants’ awareness of alleged defects in the TVT implant, she cannot
establish proximate causation. Although a jury is typically best suited to determine
whether a warning should have been issued, the Court finds that the absence of proximate
causation precludes this analysis and warrants granting summary judgment.
Thus, the Court finds that it properly granted summary judgment on plaintiff’s
failure to warn claim, even were the Court to allow plaintiff to expand her theory to
include a post-sale failure to warn, (Doc. 81, at 9–12) and denies plaintiff’s motion on
Plaintiff argues her negligent misrepresentation claim should be reinstated because
both she and Dr. Bremner reasonably relied on defendants’ inadequate warnings. (Doc.
84-1, at 10–12). As the Court stated in its prior Order, “[t]here is no evidence in the
record that Dr. Bremner relied upon or even read defendants’ warnings and instructions”
related to the TVT implant. (Doc. 81, at 13–14). For the reasons discussed above,
deposing Dr. Bremner now is not warranted.
Moreover, as the Court noted, plaintiff testified that she does not remember
reading or relying upon any of defendants’ materials in selecting the TVT implant. (Doc.
81, at 3, 13); see also (Docs. 39, at 2; 45, at 3–4). Plaintiff now argues this testimony
is not dispositive of her knowledge because she may “subsequently recollect receiving
[defendants’ materials] when she testifies at trial[.]” (Doc 84-1, at 12).6 First, plaintiff’s
argument relies on conjecture and speculation; plaintiff does not assert even now that she
remembers the material, only that by the time of trial she might.
speculation about evidence is insufficient to establish a genuine issue of material fact.
Beaulieu v. Ludeman, 690 F.3d 1017, 1024 (8th Cir. 2012). Second, plaintiff’s argument
is patently unbelievable. She received the TVT implant more than 16 years ago. To
suggest that plaintiff would, at trial, suddenly remember receiving, reading, and relying
upon these materials is beyond reason. Even if plaintiff ultimately testified to this effect,
no reasonable jury could rely on such testimony.
Thus, the Court finds it properly granted summary judgment on plaintiff’s
negligent misrepresentation claim due to the absence of evidence on reliance (Doc. 81,
at 12–14) and denies plaintiff’s motion on this issue.
This quote is from the fraud section of plaintiffs’ brief, but the same argument is made in both
sections. (Doc. 84-1, at 11–12) (“[G]enuine issues of material fact remain as to whether or not
[plaintiff], in fact, received and read Defendants’ handouts regarding the TVT device.”).
Plaintiff also argues that the Court should reinstate her fraud-based claims for
largely the same reasons her negligent misrepresentation claim, i.e. that defendants made
false and misleading statements inducing reliance, and that plaintiff may recollect reading
defendants’ materials, thus causing her reliance. (Doc. 84-1, at 12–13). Again, the lack
of evidence of reliance warranted the Court’s grant of summary judgment on these claims.
(Doc. 81, at 16). Plaintiff’s reliance on Dr. Bremner and the alleged inadequacy of
defendants’ warnings alone are insufficient in the absence of evidence that Dr. Bremner
read and relied upon the warnings. No such evidence is in the record. Thus, the Court
denies plaintiff’s motion on this issue.
Loss of Consortium
Last, plaintiffs appear to argue that Timothy’s loss of consortium claim survived
summary judgment. (Doc. 84-1, at 13–14). They also specify that the claim is Timothy’s
and not plaintiff’s claim. (Doc. 90, at 5). Defendants never requested summary judgment
on this claim. (Doc. 38, at 1). In its Order on defendants’ motion for partial summary
judgment, the Court explicitly stated that Timothy’s only claim was for loss of
consortium, that it was not at issue, and that it remained viable. (Doc. 81, at 4 n.1, 23
n.7). Thus, there is nothing about the Order to reconsider or amend and the Court denies
as moot plaintiffs’ motion on this issue.
For these reasons, plaintiffs’ motion to reconsider the Court’s Order granting in
part defendants’ partial motion for summary judgment is denied. (Doc. 84). The Court’s
partial grant of summary judgment remains unchanged. (Doc. 81).
DEFENDANTS’ MOTION FOR LEAVE TO FILE SUPPLEMENTAL
MOTION FOR SUMMARY JUDGMENT ON THE
STATUTE OF LIMITATIONS
Federal Rule of Civil Procedure 16(b) states that the court must issue a scheduling
order which sets deadlines for, among other things, filing motions. FED. R. CIV. P.
16(b)(3). Rule 16(b)(4) states that “[a] schedule may be modified only for good cause
and with the judge’s consent.” Generally, courts must consider whether good cause
warrants the filing of an untimely motion for summary judgment. See, e.g., Eischeid v.
Dover Constr., Inc., 217 F.R.D. 448, 455–56 (N.D. Iowa 2003). “The primary measure
of good cause is the movant’s diligence in attempting to meet the [scheduling] order’s
requirements.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716–17 (8th Cir.
2008) (citation and internal quotation marks omitted).
It is within the court’s discretion to consider a successive motion for summary
judgment. Whitford v. Boglino, 63 F.3d 527, 530 (7th Cir. 1995). Good cause for such
a motion can be present when, for example, there is an intervening change in the law,
new evidence is discovered, or there is a clear error in the court’s prior order. Id.
“Avoiding an unnecessary trial also may constitute good cause for considering a
successive motion for summary judgment.” Lach v. United States, No. 2:08 cv 251,
2012 WL 1189619, at *2 (N.D. Ind. Apr. 6, 2012); see also Kim v. Conagra Foods,
Inc., No. 01 C 2467, 2003 WL 22669035, at *2 (N.D. Ill. Nov. 10, 2003).
Although the good cause standard governs, a district court also “possesses inherent
powers that are ‘governed not by rule or statute but by the control necessarily vested in
courts to manage their own affairs so as to achieve the orderly and expeditious disposition
of cases.’” Dietz v. Bouldin, 136 S. Ct. 1885, 1891 (2016) (quoting Link v. Wabash
R.R. Co., 370 U.S. 626 (1962)).
On February 4, 2019, the MDL court set August 14, 2019, as the deadline for
filing dispositive motions. (Doc. 15, at 3). Accordingly, defendants filed their motion
for partial summary judgment on August 9, 2019. (Doc. 38). Defendants only raised a
statute-of-limitations argument as to plaintiff’s warranty-based claims. (Doc. 39, at 11).
Defendants did not assert that any other statute-of-limitations issues applied which barred
plaintiffs’ other claims.
In ruling on defendants’ motion for partial summary judgment, the Court found
the applicable statute-of-limitations barred plaintiff’s claim for breach of implied
warranty. (Doc. 81, at 17–21). Although the Court concluded the discovery rule did
not apply to that claim, it stated in the alternative that, even if it did, “plaintiff knew or
should have known about her alleged injuries long before the filing of this case in
February 2014. Plaintiff experienced most of, if not all, the injuries and ailments she
now complains of within several months of receiving her TVT implant.” (Id., at 20). In
support, the Court cited plaintiff’s expert’s summary of plaintiff’s medical visits in the
months and years following her receipt of the TVT implant, during which plaintiff
regularly reported pelvic, vaginal, and urological health issues. (Doc. 40-1, at 8–11).
In light of this alternative finding that plaintiff should have known about her
injuries within months of receiving her implant, defendants now argue plaintiff’s
remaining claims—design defect, negligent infliction of emotional distress, and unjust
enrichment7—are barred under the applicable two-year statute-of-limitations under Iowa
Code Section 614.1(2). (Doc. 82, at 2); see also (Doc. 81, at 23). Again, plaintiff
received the TVT implant on March 7, 2004. (Doc. 39, at 2). Under the discovery rule,
Neither party discusses the effect of this statute-of-limitations argument on Timothy’s claim for
loss of consortium and plaintiffs’ claim for punitive damages, both of which remain viable. See
(Doc. 81, at 23 n.7).
which appears to apply to plaintiff’s remaining claims, if plaintiff discovered or
reasonably should have discovered her alleged injuries within months of the implantation
surgery, her claims would have begun to accrue sometime in 2004. See Estate of Montag
v. T H Agric. & Nutrition Co., 509 N.W.2d 469, 470 (Iowa 1993) (“[T]he statute of
limitations [on personal injury claims] begins to run when a plaintiff first becomes aware
of facts that would prompt a reasonably prudent person to begin seeking information as
to the problem and its cause.”). Thus, if that is the case the two-year statute-of-limitations
that applies to these claims would have expired around the end of 2006. See (Doc. 82,
at 2). Plaintiff did not file suit, however, until February 28, 2014. (Doc. 1). As a
result, defendants request that the Court allow this issue to be fully briefed before this
case proceeds. (Doc. 82, at 5). Defendants argue that resolution of this narrow and
dispositive issue is in the interest of judicial efficiency and will not prejudice plaintiffs.
(Id., at 5–9).
Plaintiffs argue that defendants have not shown good cause for their untimely
assertion of this issue and that they would be prejudiced if required to litigate the statuteof-limitations issue at this stage. (Doc. 85, at 3–4, 10–11). 8
Generally, successive motions for summary judgment have been permitted where
they “may obviate the need for a trial and, therefore, conserve judicial resources.”
Cleveland Air Serv., Inc. v. Pratt & Whitney Can., No. 4:13-CV-161-DMB-DAS, 2016
WL 7634674, at *4 (N.D. Miss. July 29, 2016); see also Henderson v. Wal-Mart Stores,
Plaintiff also argues that defendants waived any defense on the statute-of-limitations by not
asserting it in a responsive pleading as required by Federal Rule of Civil Procedure 8(c). (Doc.
85, at 7–8). In their Master Answer for the MDL, however, defendants asserted a statute-oflimitations defense generally. (Doc. 49-2, at 43). Even a brief, non-specific mention of a statuteof-limitations argument satisfies the affirmative defense pleading requirement of Rule 8(c). See,
e.g., Holway v. Negro Leagues Baseball Museum, 263 Fed. App’x 538, 538 (8th Cir. 2008)
(per curiam) (citing Buttice v. G.D. Searle & Co., 938 F. Supp. 561, 565 (E.D. Mo. 1996)).
Thus, plaintiff’s argument is without merit on this issue.
Inc., No. 1:14-cv-224, 2015 WL 3901755, at *3 (E.D. Tex. June 23, 2015) (“It would
be a considerable waste of the court’s and the parties’ resources to have a trial on an issue
that could be resolved through motion practice.”).
Specifically, some courts have
arguments. See, e.g., Cleveland Air Serv., Inc., 2016 WL 7634674, at *4 (“[T]he statute
of limitations argument has the potential to conserve judicial resources and . . . therefore
consideration of the argument is proper.”); Perez v. Superior Ct. of Guam, Cv No 0800007 DAE, 2011 WL 13209114, at *4 (D. Guam July 19, 2011) (noting that the
defendant’s statute-of-limitations argument was not raised “at the eleventh hour,” trial
had not yet been scheduled, and the argument had the potential to “save all concerned”
the greater expense of a trial). Other courts have rejected such motions. See, e.g., Daker
v. Ferrero, 1:03-CV-2526-RWS, 2007 WL 1020844, at *4 (N.D. Ga. Mar. 30, 2007)
(denying the defendants’ statute-of-limitations argument because the defendants had an
“ample opportunity” to discover the relevant facts and assert the argument in a timely
Even in cases arising from the same MDL, courts have reached different
conclusions on whether to grant leave to file a successive motion for summary judgment
on a statute-of-limitations argument. In Massoudi v. Ethicon, Inc., the Central District
of California found that the plaintiffs had not identified any prejudice and the defendants
had not shown good cause for their delay aside from dealing with a large volume of cases.
(No. 2:20-cv-03944 (C.D. Cal. Aug. 11, 2020) (Doc. 90, at 1–2)). Nevertheless, the
court found that “a just and speedy resolution of th[e] lawsuit” warranted the filing of the
defendants’ successive motion for summary judgment on the statute-of-limitations. Id.
A contrary result, the court found, would “risk undergoing the full labor and expense of
trial preparation for a trial that may nevertheless be resolved on an entirely legal basis.”
Id.9 Similarly, the District of Arizona found that, “[a]lthough Defendants have offered
no real justification for their delay . . ., the Court agrees it would be prudent to address
their affirmative defense [on the statute-of-limitations] now, before trial.” (Granillo v.
Johnson & Johnson, No. 4:19-cv-529 (D. Ariz. Mar. 3, 2020) (Doc. 62, at 1)).10 The
District of Kansas, however, refused to consider a successive motion for summary
judgment on the statute-of-limitations. (Rutherford v. Ethicon, Inc., No. 20-cv-1066EFM-TJJ (D. Kan. Apr. 29, 2020) (Doc. 63, at 2–3)).
The only good cause present here is judicial efficiency. Defendants cite no other
reason why their statute-of-limitations argument could not have been included in their
initial motion for summary judgment.
Although many courts have found judicial
efficiency alone to be sufficient under these circumstances, the Court is highly dubious
of allowing a dispositive motion to be filed more than a year after the deadline. See
Sherman, 532 F.3d at 716–17 (noting the importance of diligence in assessing good
The Court later granted the defendants’ supplemental motion for summary judgment on the
statute-of-limitations and dismissed the action in its entirety. (Massoudi, No. 2:20-cv-03944
(C.D. Cal. Sept. 24, 2020) (Doc. 101))
Although Minzel v. Ethicon, Inc., 8:20CV13 (D. Neb. June 12, 2020 (Docs. 92, 93 & 113)
and Norby v. Ethicon, Inc., No. 1:20-cv-00323 (N.D. Ga. Apr. 17, 2020) (Doc. 45 at 5–6) also
both involve successive motions for summary judgment on the statute-of-limitations filed in cases
arising from the same MDL, their successive motions proceeded in part because their prior
motions for summary judgment were denied as moot and dismissed without prejudice
respectively. Thus, these cases offer minimal guidance here.
Also, in Gillespie v. Ethicon, Inc., No. 3:20-cv-00025-JAJ-HCA (Sept. 9, 2020) (Doc. 63) and
Willet v. Johnson & Johnson, No. 1:12-cv-00034-JAJ-RAW, 2020 WL 1877188 (S.D. Iowa
June 3, 2020), the Southern District of Iowa granted leave to file successive motions for summary
judgment. Neither case, however, involved the statute-of-limitations or provided any rationale
for the court’s grant of leave. Thus, these cases also offer minimal guidance.
Nevertheless, the Court finds it is ultimately in the interest of all involved to
address the statute-of-limitations issue on a successive motion for summary judgment
rather than ignoring it until trial. Regardless of when, plaintiff will have to address this
issue. Thus, defendants’ motion does not backtrack the litigation here but, rather, fastforwards it. There is little point in requiring the parties to expend time and money in
preparation for trial only for this dispute to be resolved on a legal issue that could be
addressed now, even if defendants could and should have raised it earlier. Although the
Court declines to expound upon the merits at this time so that the parties may fully brief
this issue,11 its prior Order indicates that defendants’ statute-of-limitations defense
appears to have significant merit. Given that addressing the issue now is substantially
more efficient, the Court finds good cause is present.
Further, the Court elects to exercise its discretion in light of this good cause. Trial
has not yet been scheduled in this matter. The statute-of-limitations issue is narrow and
potentially dispositive of all of plaintiffs’ claims. Given that this defense was raised in
defendants’ Master Answer, it is also not an entirely unanticipated avenue of litigation.
Based on the totality of circumstances, the Court finds it appropriate to address this issue
now and thus grants defendants’ motion for leave to file a supplemental motion for
summary judgment on the statute-of-limitations issue. (Doc. 82).12
The Court notes that defendants submitted their substantive brief along with their motion for
leave (Doc. 82-3) and that plaintiff responded to the substance of defendants’ brief at length
(Doc. 85, at 4–10). The Court will, however, afford both parties an opportunity to address this
issue more fully if they so desire. In their briefing, both parties are to also brief the implication
any statute-of-limitations ruling would have on Timothy’s claim for loss of consortium and
plaintiffs’ claim for punitive damages.
Given the Court’s grant of leave, it need not consider defendants’ alternative request for a
bifurcated trial on the statute-of-limitations issue. See (Doc. 86, at 5 n.5).
For these reasons, plaintiffs’ Motion for Leave to Take the Deposition of Randall
Bremner, M.D. (Doc. 83) is denied, plaintiffs’ Motion to Reconsider and Amend this
Court’s Memorandum Opinion and Order on Defendants’ Motion for Summary Judgment
(Doc. 84) is denied, and defendants’ Motion for Leave to File Supplemental Motion for
Summary Judgment on the Statute of Limitations (Doc. 82) is granted.
Defendants have 14 days from the publication date of this Order to file their
supplemental motion for summary judgment and corresponding brief. Plaintiffs have 14
days from the date defendants file their brief to submit a resistance brief. Defendants
have seven days from the date plaintiffs file their resistance to submit a reply brief.
IT IS SO ORDERED this 16th day of October, 2020.
United States District Judge
Northern District of Iowa
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