Laffoon v. Ethicon, Inc. et al
Filing
90
MEMORANDUM OPINION AND ORDER (Defendant's Motions for Summary Judgment) The 69 ALTERNATIVE MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment is GRANTED in its entirety and the plaintiff's claims against Ethicon are DISMISSED with prejudice; the 59 MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment on All Claims, 75 OMNIBUS MOTION by Ethicon, Inc., Johnson & Johnson in Limine and 77 MOTION by Ethicon, Inc., Johnson & Johnson in Limine to Exclude Evidence of Plaintiff's Allegations of Spoliation are DENIED as moot. Signed by Judge Robert C. Chambers on 12/13/2017. (cc: counsel of record; any unrepresented party) (mek)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
DANNI LAFFOON,
Plaintiff,
v.
CIVIL ACTION NO. 2:12-cv-0485
ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
(Defendants’ Motions for Summary Judgment)
Pending before the court is the defendants’ Motion for Summary Judgment
[ECF No. 59] and defendants’ Alternative Motion for Summary Judgment [ECF No.
69]. The plaintiff, proceeding pro se, opposed only the defendants’ Motion for
Summary Judgment. See Resp. [ECF No. 62]. She did not respond to the defendants’
Alternative Motion for Summary Judgment. The matter is now ripe for adjudication.
As set forth below, the defendants’ Motion for Summary Judgment [ECF No. 59] is
DENIED as moot, the defendants’ Alternative Motion for Summary Judgment is
GRANTED in its entirety and the plaintiff ’s claims against Ethicon are DISMISSED
with prejudice.
I.
Background
This case resides in one of seven MDLs assigned to the court by the Judicial
Panel on Multidistrict Litigation concerning the use of transvaginal surgical mesh to
treat pelvic organ prolapse (“POP”) and stress urinary incontinence (“SUI”). In the
seven MDLs, there are approximately 29,000 cases currently pending, approximately
17,000 of which are in the Ethicon, Inc. and Johnson & Johnson, Inc. (“Ethicon”)
MDL, MDL 2327. This individual case is one of a group of cases that the Clerk of the
Court reassigned to me on November 22, 2016. [ECF No. 82].
Prior to reassignment, in an effort to efficiently and effectively manage this
massive MDL, Judge Goodwin decided to conduct pretrial discovery and motions
practice on an individualized basis so that once a case is trial-ready (that is, after the
court has ruled on all summary judgment motions, among other things), it can then
be promptly transferred or remanded to the appropriate district for trial. To this end,
Judge Goodwin ordered the plaintiffs and defendants to submit a joint list of 200 of
the oldest cases in the Ethicon MDL that name only Ethicon, Inc., Ethicon, LLC,
and/or Johnson & Johnson. These cases became part of a “wave” of cases to be
prepared for trial and, if necessary, remanded. See Pretrial Order No. 193, In re
Ethicon, Inc. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-02327, Aug. 19, 2015,
http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. The plaintiff ’s case was
selected as a Wave 1 case.
II.
Legal Standards
A. Summary Judgment
To obtain summary judgment, the moving party must show that there is no
genuine dispute as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for
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summary judgment, the court will not “weigh the evidence and determine the truth
of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the
court will draw any permissible inference from the underlying facts in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587–88 (1986).
Although the court will view all underlying facts and inferences in the light
most favorable to the nonmoving party, the nonmoving party nonetheless must offer
some “concrete evidence from which a reasonable juror could return a verdict” in his
or her favor. Anderson, 477 U.S. at 256. Summary judgment is appropriate when the
nonmoving party has the burden of proof on an essential element of his or her case
and does not make, after adequate time for discovery, a showing sufficient to establish
that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The nonmoving
party must satisfy this burden of proof by offering more than a mere “scintilla of
evidence” in support of his or her position. Anderson, 477 U.S. at 252. Likewise,
conclusory allegations or unsupported speculation, without more, are insufficient to
preclude the granting of a summary judgment motion. See Dash v. Mayweather, 731
F.3d 303, 311 (4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th
Cir. 1997).
Despite being given a chance to do so, the plaintiff failed to respond to the
defendants’ Alternative Motion for Summary Judgment [ECF No. 69], and the court,
accordingly, considers the Motion unopposed. A court does not, however,
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automatically grant an unopposed motion for summary judgment. See Fed. R. Civ. P.
56(e).
[I]n considering a motion for summary judgment, the
district court “must review the motion, even if unopposed,
and determine from what it has before it whether the
moving party is entitled to summary judgment as a matter
of law.” Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416
(4th Cir.1993) (emphasis added). “Although the failure of a
party to respond to a summary judgment motion may leave
uncontroverted those facts established by the motion,” the
district court must still proceed with the facts it has before
it and determine whether the moving party is entitled to
judgment as a matter of law based on those uncontroverted
facts. Id.
Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 409 n.8 (4th Cir. 2010).
B. Choice of Law
Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in
MDL cases. The choice of law for these pretrial motions depends on whether they
concern federal or state law:
When analyzing questions of federal law, the transferee
court should apply the law of the circuit in which it is
located. When considering questions of state law, however,
the transferee court must apply the state law that would
have applied to the individual cases had they not been
transferred for consolidation.
In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050,
1055 (8th Cir. 1996) (citations omitted). To determine the applicable state law for a
dispositive motion, the court generally refers to the choice-of-law rules of the
jurisdiction where the plaintiff first filed her claim. See In re Air Disaster at Ramstein
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Air Base, Ger., 81 F.3d 570, 576 (5th Cir. 1996) (“Where a transferee court presides
over several diversity actions consolidated under the multidistrict rules, the choice of
law rules of each jurisdiction in which the transferred actions were originally filed
must be applied.”); In re Air Crash Disaster Near Chi., Ill., 644 F.2d 594, 610 (7th Cir.
1981); In re Digitek Prods. Liab. Litig., MDL No. 2:08-md-01968, 2010 WL 2102330,
at *7 (S.D. W. Va. May 25, 2010).
This case was originally filed in the Western District of Kentucky. Therefore, I
use Kentucky’s choice-of-law rules to determine which state’s law to apply to this
case. Kentucky courts apply a “significant contacts” test for tort claims. See Foster v.
Leggett, 484 S.W.2d 827, 829 (Ky. 1972). Under this rule, “significant contacts—not
necessarily the most significant contacts” permit the application of Kentucky law. Id.
Moreover, “any significant contact with Kentucky [i]s sufficient to allow Kentucky
law to be applied.” Bonnlander v. Leader Nat. Ins. Co., 949 S.W.2d 618, 620 (Ky.
1996); see also Brewster v. Colgate–Palmolive Co., 279 S.W.3d 142, 145 n.8 (Ky. 2009)
(finding “significant contacts” with Kentucky and applying Kentucky law even
though the plaintiff was exposed to asbestos when he worked at the defendant’s
Indiana plant). Here, the plaintiff is a resident of Kentucky and was a Kentucky
resident at the time of implantation. Thus, I FIND that Kentucky has significant
contacts with the case, and I apply Kentucky law.
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III.
Discussion
In Ethicon’s Alternative Motion for Summary Judgment [ECF No. 69], Ethicon
argues it is entitled to summary judgment because the plaintiff’s claims are either
barred by the statute of limitations or without evidentiary or legal support.
A. Negligence and Strict Liability
Kentucky applies a one-year statute of limitations for products liability
actions. Bosch v. Bayer Healthcare Pharm., Inc., 13 F. Supp. 3d 730, 737 (W.D. Ky.
2014) (citing Ky. Rev. Stat. Ann. § 413.140(1)(a)). Kentucky has adopted the discovery
rule “in cases where the fact of injury or offending instrumentality is not immediately
evident or discoverable with the exercise of reasonable diligence.” Fluke Corp. v.
LeMaster, 306 S.W.3d 55, 60 (Ky. 2010). “In the products liability context, a potential
plaintiff’s awareness of an injury and of the instrumentality causing the injury is
enough to trigger the limitations clock and to impose on the plaintiff the duty to
discover the responsible parties.” Id. at 64 (quoting Reese v. Gen. Am. Door Co., 6
S.W.3d 380, 383 (Ky. Ct. App. 1998)).
Here, at the very latest, Ms. Laffoon was aware of the injury and of the
instrumentality causing the injury in June of 2010 when she asked her treating
physician who manufactured the TVT device, informed her physician she had hired
a lawyer, and told her physician that “she wondered if her pain was due to the sling.”
See Mot. Summ. J. Ex. A, at 66:5–23, 67:1–3, 67:13–16, 67:20–21, 68:1–2 [ECF No.
69-1] (“Dr. Ward Dep.”). Thereafter, she wrote Ethicon a letter detailing her concerns
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and problems related to the TVT device in July 18, 2010. Mot. Summ. J. Ex. C, at
9:2–10:7, 86:8–87:17 [ECF No. 69-3]; Mot. Summ. J. Ex. D [ECF No. 69-4]. Ms.
Laffoon filed her Complaint on January 4, 2012, almost eighteen months later. See
Compl. [ECF No. 1]. Ms. Laffoon failed to bring her products liability claims within
the one-year statute of limitations and the defendants are entitled to judgment as a
matter of law on this matter. Accordingly, Ethicon’s Alternative Motion for Summary
Judgment [ECF No. 69] is GRANTED as to Counts I–V, X, and XIV.
B. Breach of Warranty, Express and Implied
Ethicon argues that the plaintiff’s breach of warranty claims must be
dismissed because there is no privity of contract between the parties. For breach of
warranty actions under Kentucky law, plaintiffs must be in privity with the
defendant, either vertically or horizontally by virtue of Ky. Rev. Stat. Ann. § 355.2318. See Williams v. Fulmer, 695 S.W.2d 411, 414 (Ky. 1985) (granting summary
judgment to manufacturer because the plaintiff was not in privity with the
manufacturer or within the class protected under Ky. Rev. Stat. Ann. § 355.2-318);
Gaunce v. CL Med. Inc., No. 5:14-346-DCR, 2015 WL 893569, at *2 (E.D. Ky. March
2, 2015) (“Under Kentucky law, privity of contract is an essential element of a claim
for breach of warranty.”); see also Ky. Rev. Stat. Ann. § 355.2-318 (extending privity
to any person “who is in the family or household of his buyer or who is a guest in his
home if it is reasonable to expect that such person may use, consume or be affected
by the goods and who is injured in person by breach of the warranty”). “As a rule,
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privity of contract does not extend beyond the buyer-seller setting, and an intervening
purchaser destroys privity.” Gaunce, 2015 WL 893569, at *2 (citing Compex Int’l Co.
v. Taylor, 209 S.W.3d 462, 465 (Ky. 2007)). In this circumstance, Ms. Laffoon has not
alleged any facts to dispute Ethicon’s argument that she was not in privity with
Ethicon. Accordingly, Ms. Laffoon was not in privity with Ethicon. See Compex, 209
S.W.3d at 465 (finding no privity between the buyer and the manufacturer where the
buyer bought from an intermediary); see also Munn v. Pfizer Hosp. Prods. Grp., 70 F.
Supp. 244, 248 (W.D. Ky. 1990); Snawder v. Cohen, 749 F. Supp. 1473, 1481 (W.D.
Ky. 1990). Further, Ms. Laffoon is not encompassed by § 355.2-318. Thus, no genuine
issue of material fact remains on Counts XI and XII and the defendants are entitled
to judgment as a matter of law. Ethicon’s Alternative Motion for Summary Judgment
[ECF No. 69] is GRANTED as to Counts XI and XII.
C. Remaining Claims
Ethicon argues that it is entitled to summary judgment on the remaining
substantive claims because the plaintiff cannot meet her evidentiary burden. Because
the plaintiff has not responded, she has not put forward even a mere “scintilla of
evidence” supporting these claims. Accordingly, the facts are undisputed and the
court FINDS that Ethicon is entitled to judgment as a matter of law on the remaining
claims and GRANTS Ethicon’s Alternative Motion for Summary Judgment [ECF No.
69] as to Counts VI–IX, XIII, and XV.
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Because summary judgment has been granted on all substantive theories of
liability, the plaintiffs’ remaining claims must also be dismissed, as they are either
derivative of the substantive claims or not themselves independent causes of action.
Blackwell v. Ethicon, Inc., No. 2:12-cv-03155, 2017 WL 2884531, at *3 (S.D. W. Va.
July 6, 2017). Accordingly, summary judgment as to Count XVII (Punitive Damages)
and Count XVIII (Discovery Rule and Tolling) is GRANTED.
IV.
Conclusion
For the reasons discussed above, the court hereby ORDERS that Ethicon’s
Alternative Motion for Summary Judgment [ECF No. 69] is GRANTED in its entirety
and the plaintiff ’s claims against Ethicon are DISMISSED with prejudice.
Accordingly, Ethicon’s Motion for Summary Judgment [ECF No. 59], Ethicon’s
Omnibus Motion [ECF No. 75], and Ethicon’s Motion in Limine [ECF No. 77] are
DENIED as moot.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: December 13, 2017
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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