Williams v. Ethicon, Inc. et al

Filing 146

MEMORANDUM OPINION AND ORDER (Defendants' Amended Motion for Summary Judgment) The 99 AMENDED MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment is GRANTED regarding the following claims: negligent manufacturing (part of Count I) ; (Count II) strict liability manufacturing defect; (Count III) strict liability failure to warn; (Count IV) strict liability defective product; (Count V) strict liability design defect; (Count IX) negligent misrepresentation; (Count X) negligent infliction of emotional distress; (Count XIII) consumer protection; and (Count XV) unjust enrichment; the defendants' Motion as to the remaining claim under the Kansas Product Liability Act for defective design and failure to warn theories, (XV II) punitive damages, and (XVIII) discovery rule and tolling is DENIED; and Ethicon's Motion regarding the statute of limitations is also DENIED. Signed by Judge Joseph R. Goodwin on 1/10/2017. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

NANCY WILLIAMS,
Plaintiff,
v.

CIVIL ACTION NO. 2:12-cv-00511

ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER

(Defendants’ Amended Motion for Summary Judgment)
Pending before the court is the defendants’ Amended Motion for Summary
Judgment [ECF No. 99]. As set forth below, the defendants’ Motion is GRANTED in
part and DENIED in part.
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 more than 60,000 cases currently pending, approximately
28,000 of which are in the Ethicon, Inc. and Johnson & Johnson, Inc. (“Ethicon”)
Multidistrict Litigation (“MDL”), MDL 2327. In an effort to efficiently and effectively
manage this massive MDL, the court 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, the court 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, which would then become 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-002327, Aug. 19,
available

2015,

at

http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html.

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completed this process four times and selected Ms. Williams’ case as a Wave 1 case.
On November 17, 2006, Ms. Williams was surgically implanted with the
defendants’ TVT-Obturator (“TVT-O”) and Prolift (“Prolift”), products manufactured
by Ethicon. Am. Short Form Compl. ¶¶ 9–10 [ECF No. 21]. Ms. Williams’ surgery
occurred at Overland Park Regional Medical Center in Overland, Kansas. Id. ¶ 11.
Ms. Williams claims that as a result of implantation of these devices she has
experienced multiple complications. She brought the following claims against
Ethicon: (I) negligence, (II) strict liability – manufacturing defect, (III) strict
liability – failure to warn, (IV) strict liability – defective product, (V) strict liability –
design

defect,

(VI)

common

law

fraud,

(VII) fraudulent

concealment,

(VIII) constructive fraud, (IX) negligent misrepresentation, (X) negligent infliction of
emotional distress, (XI) breach of express warranty; (XII) breach of implied warranty,
(XIII) violation of consumer protection laws, (XIII) violation of consumer protection

2

laws, (XIV) gross negligence, (XV) unjust enrichment, (XVII) punitive damages, and
(XVIII) discovery rule and tolling. Id. ¶ 13.
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
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
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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).
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) (internal 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 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).
Here, the plaintiff originally filed her case in the Western District of Missouri.
Therefore, Missouri law governs the choice-of-law analysis. Missouri law employs
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“the most significant relationship test” to determine which state’s substantive law to
apply in a tort action. Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo. 1969) (en banc).
Under this test, the court must evaluate the contacts of each interested state and
determine which state “has the most significant contacts” with the lawsuit. Id. In
doing so, the court balances four factors: “(a) the place where the injury occurred, (b)
the place where the conduct causing the case occurred, (c) the domicile, residence,
nationality, place of incorporation and place of business of the parties, and (d) the
place where the relationship, if any, between the parties is centered.” Wright v. Miller,
736 F. Supp. 1024, 25-26 (W.D. Mo. 1990).
Ms. Williams was a resident of Kansas at the time of her implantation surgery,
which took place in Kansas. She suffered from her injuries in Kansas for many years
prior to moving to Missouri. The parties agree, as does the court, that these principles
compel application of Kansas law to the plaintiff’s claims. Thus, the court applies
Kansas’ substantive law to this case.
III.

Analysis
Ethicon argues that it is entitled to summary judgment on all of Ms. Williams’

claims because her claims are time-barred by the statute of limitations. Mem. Am.
Supp. Mot. Summ. J. 1 [ECF No. 100]. Alternately, Ethicon argues that the Kansas
Product Liability Act (“KPLA”) requires all of Ms. Williams’ claims to be consolidated
into a single of cause of action, and that the remaining claim should be dismissed
because it is without evidentiary or legal support. Id. Ms. Williams agrees that this
court should dismiss several of the counts listed in her Amended Short Form
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Complaint because they are not recognized by Kansas law. However, Ms. Williams
contends that she has a viable claim under KPLA for both design defect and failure
to warn theories. Pl.’s Resp. Mem. Opp. Mot. Summ. J. 1 [ECF No. 107].
Accordingly, the defendants’ Motion with regard to all other claims is
GRANTED: (I) negligence, (II) strict liability – manufacturing defect, (III) strict
liability – failure to warn, (IV) strict liability – defective product, (V) strict liability –
design

defect,

(VI)

common

law

fraud,

(VII) fraudulent

concealment,

(VIII) constructive fraud, (IX) negligent misrepresentation, (X) negligent infliction of
emotional distress, (XI) breach of express warranty; (XII) breach of implied warranty,
(XIII) violation of consumer protection laws, (XIV) gross negligence, and (XV) unjust
enrichment. Below, the court applies the summary judgment standard to the
remaining claim.
A. Statute of Limitations
1. Missouri Borrowing Statute and the Kansas Statute of Limitations
Under the rules of the state of Missouri, when a court rules on statute of
limitations issues, the law of the forum state is applied. Alvarado v. H & R Block,

Inc., 24 S.W.3d 236, 241 (Mo. Ct. App. W.D. 2000). As stated previously, because this
case was first filed in the Western District of Missouri, Missouri is the forum state.
When a cause of action “originates” in another state, however, that state’s
statute of limitations becomes applicable through Missouri’s Borrowing Statute,
§ 516.190. Mo. Rev. Stat. § 516.190 (2015); Wright v. Campbell, 277 S.W.3d 771, 773–
34 (Mo. Ct. App. W.D. 2009) (internal quotations omitted). The Missouri Borrowing
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Statute states, “Whenever a cause of action has been fully barred by the laws of the
state, territory or country in which it originated, said bar shall be a complete defense
to any action thereon, brought in any of the courts of this state.” Mo. Ann. Stat.
§ 516.190. Thus, if Ms. Williams’ case originated in Kansas, and the statute of
limitations had run on her claim under Kansas law, it must be dismissed in this court
under the Borrowing Statute of Missouri.
“Originated” as used in the Missouri Borrowing Statute has the same meaning
as that of “accrued” in Missouri’s statute of limitations. Wright, 277 S.W.3d at 774. A
claim “accrues” once the evidence places a reasonably prudent person on notice of a
potentially actionable injury. Powel v. Chaminade Coll. Preparatory, Inc., 197
S.W.3d. 576, 582 (Mo. 2006) (quoting Bus. Men’s Assurance Co. of Am. v. Graham,
984 S.W.2d 501, 507 (Mo. 1999) (en banc)).
Even if I assume arguendo that Ms. Williams’ case “originated” in Kansas as
defined by Missouri Statute § 516.190, this action would not be fully barred by
Kansas’ statute of limitation, and therefore, Missouri’s Borrowing Statute does not
preclude Ms. Williams’ claim. Product liability claims brought under KPLA follow
Kansas’ two-year statute of limitations. Kans. Stat. Ann. §§ 60-513, 60-3301 et seq.,
60-3302(c); Fennesy v. LBI Mgmt. Inc., 847 P.2d 1350, 1354 (Kan. 1993). The statute
of limitations does not begin to run “until the act giving rise to the cause of action
first causes substantial injury, or, if the fact of injury is not reasonably ascertainable
until some time after the initial act, then the period of limitation shall not commence
until the fact of injury becomes reasonably ascertainable to the injured party.” Kans.
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Stat. Ann. § 60-513(b). This is an objective standard. Burton v. R.J. Reynolds Tobacco

Co., 181 F. Supp. 2d 1256, 1268 (D. Kan. 2002).
To determine when “substantial injury” occurs, Kansas case law maintains
that, “[t]he statute of limitations was not designed to force injured parties into court
at the first sign of injury regardless of how slight it may be, just because the injury
and damages resulting therefrom may be permanent in nature.” Olson v. State

Highway Comm’n of Kansas, 679 P.2d 167, 174 (Kan. 1984). Under the alternate
method of determining the start of the statute of limitations clock, the relevant
inquiry is “when the fact of injury became ‘reasonably ascertainable’ to the injured
party-not when the injured party had knowledge of the fact of injury.” Burton, 181 F.
Supp. 2d at 1268. Where the evidence is in dispute as to when the fact of injury first
became reasonably ascertainable to plaintiffs or when substantial injury first
appears, the issue should be determined by the trier of fact. Olson, 679 P.2d at 174.
I find that questions of fact remain in dispute concerning when the statute of
limitations began to run, and accordingly DENY Ethicon’s Motion based on Kansas’
statute of limitations.
2. The Missouri Statute of Limitations
Missouri considers the statute of limitation to be a procedural rule, thus
Missouri applies its own five-year statute of limitations to Ms. Williams’ tort claims.

See Alvarado, 24 S.W.3d at 241; Mo. Ann. Stat. § 156.120. Pursuant to § 156.120(4),
a tort claim “shall not be deemed to accrue when the wrong is done . . . but [rather,]
when the damage resulting therefrom is sustained and is capable of ascertainment.”
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Huffman v. Credit Union of Texas, 758 F. 3d 963, 967 (8th Cir. 2014) (quoting Mo.
Ann. Stat. § 156.100). Nevertheless, Missouri’s own statute of limitations would not
bar Ms. Williams’ action for the reasons set forth below.
The term “capable of ascertainment” is left undefined in the statute, and thus
this court turns to Missouri case law for guidance. Many Missouri courts adopt the
approach, as stated previously, that: “the statute of limitations begins to run when
the evidence was such to place a reasonably prudent person on notice of a potentially
actionable injury.” Wright, 277 S.W.3d at 774. “Capable of ascertainment” has also
been compared to putting a plaintiff on “inquiry notice.” Powel, 197 S.W.3d at 583.
Under this standard, “a cause of action accrues when the damage can be discovered
[by a reasonable person using reasonable diligence], not when it is actually
discovered.” State ex rel. Gasconade Cty. v. Jost, 291 S.W.3d 800, 804 (Mo. Ct. App.
E.D. 2009) (internal citations omitted). Even using Ethicon’s proposed date of
December 2007, Ms. Williams’ action was still timely when she filed on February 9,
2012.
Thus, Ethicon’s Motion is DENIED because Ms. Williams’ claim is timely
under Missouri law.
B. Effects of the Kansas Product Liability Act
As the law requires, and as both parties agree, the Kansas Products Liability
Act requires all of plaintiff’s causes of action to be consolidated into one claim of legal
liability. See Savina v. Sterling Drug, Inc. 795 P.2d 915, 931 (Kan. 1990); see also

Patton v. Hutchinson Wil-Rich Mfg., 861 P.2d 1299, 1311 (Kan. 1993). Under KPLA,
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a plaintiff must show a product is defective through one of three theories: design
defect, manufacturing defect, or failure to warn. Baugh v. Eli Lilly & Co., 356 F. Supp.
2d 1177, 1183 (D. Kan. 2005).
Ethicon’s Motion regarding consolidation of claims is GRANTED.
1. Design Defect
As Ms. Williams noted in her response, Ethicon did not challenge a design
defect theory in its motion. To the extent a motion is being made, Ethicon has failed
to meet its burden under the summary judgment standard of showing a genuine
dispute as to any material fact. See Fed. R. Civ. P. 56(a); Anderson, 477 U.S. at 250;

Celotex, 477 U.S. at 323–24.
Accordingly, to the extent Ethicon’s Motion challenges the theory of design
defect, the Motion is DENIED.
2. Manufacturing Defect
Ethicon argues that Ms. Williams has failed to allege any evidence that its
products deviated from their intended design. Defs. Mem. 17. Under Kansas law, the
plaintiff must show that a flaw was present in the product at the time it was sold and
that the defect caused the alleged injury. Savina, 795 P.2d at 923. Ms. Williams did
not respond to Ethicon’s argument, and I do not find specific facts showing a genuine
dispute of material fact for trial. See Celotex, 477 U.S. at 322-23.
Ethicon’s Motion regarding the theory of manufacturing defect is GRANTED.
3. Failure to Warn
After considering the parties’ proffered arguments and evidence, I find that
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genuine disputes of material fact exist regarding the plaintiff ’s failure to warn KPLA
claim. Ethicon’s Motion is DENIED.
IV.

Conclusion
For the reasons discussed above, it is ORDERED that the defendants’

Amended Motion for Summary Judgment [ECF No. 99] is GRANTED in part and
DENIED in part. As the plaintiff has conceded these claims, the defendants’ Motion
is GRANTED regarding the following claims: negligent manufacturing (part of
Count I); (Count II) strict liability – manufacturing defect; (Count III) strict liability
– failure to warn; (Count IV) strict liability – defective product; (Count V) strict
liability – design defect; (Count IX) negligent misrepresentation; (Count X) negligent
infliction of emotional distress; (Count XIII) consumer protection; and (Count XV)
unjust enrichment.
The defendants’ Amended Motion on the claim under the Kansas Product
Liability Act for manufacturing defect theory is GRANTED.
The defendants’ Motion as to the remaining claim under the Kansas Product
Liability Act for defective design and failure to warn theories, (XVII) punitive
damages, and (XVIII) discovery rule and tolling is DENIED. Ethicon’s Motion
regarding the statute of limitations is also DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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January 10, 2017