Kivel v. Ethicon, Inc. et al
Filing
121
MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) Ethicon's 67 Motion for Summary Judgment is GRANTED with regard to the plaintiff's claims for: Count II, strict liability manufacturing defect; Count IV, strict l iability defective product; Count VI, Fraud; Count VII, fraudulent concealment; Count VIII, constructive fraud; Count IX, negligent misrepresentation; Count X, negligent infliction of emotional distress; Count XI, breach of express warranty; Count XI I breach of implied warranty; Count XIII, violation of consumer protection laws; Count XIV, gross negligence; and Count XV, unjust enrichment; and Ethicon's Motion regarding the plaintiff's strict liability design defect, strict liability failure to warn and negligence claims is DENIED. Signed by Judge Joseph R. Goodwin on 12/19/2016. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
BEVERLY KIVEL,
Plaintiff,
v.
CIVIL ACTION NO. 2:12-cv-0591
ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Summary Judgment)
Pending before the court is the defendants’ Motion for Summary Judgment
[ECF No. 67]. 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 58,000 cases currently pending, approximately
28,000 of which are in the Ethicon, Inc. and Johnson & Johnson, Inc. (“Ethicon”)
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. 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-002327, Aug. 19, 2015, available at
http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. I completed this selection
process four times and selected the plaintiff ’s case as a Wave 1 case.
On
January
5,
2005,
Ms.
Kivel
was
surgically
implanted
with
Gynemesh/Gynemesh PS (“PS”), a product manufactured by Ethicon. Am. Short Form
Compl. ¶¶ 9–10 [ECF No. 22]. Ms. Kivel’s surgery occurred at Regions Hospital in St.
Paul, Minnesota. Id. ¶ 11. Ms. Kivel claims that as a result of implantation of the PS,
she has experienced multiple complications. She brings the following claims against
Ethicon: negligence, strict liability manufacturing defect, strict liability failure to
warn, strict liability defective product, strict liability design defect, common law
fraud, fraudulent concealment, constructive fraud, negligent misrepresentation,
negligent infliction of emotional distress, breach of express and implied warranties,
violation of consumer protection laws, gross negligence, unjust enrichment, punitive
damages, and discovery rule and tolling. Id. ¶ 13.
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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
preclude the granting of a summary judgment motion. See Dash v. Mayweather, 731
3
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). The plaintiff in this case originally filed
her complaint in the United States District Court for the District of Minnesota. (See
Compl. & Jury Demand 1 [ECF No. 1]). Accordingly, I must apply Minnesota’s choice4
of-law rules.
The parties agree, as does the court, that these principles compel application
of Minnesota law to the plaintiff’s claims. Minnesota focuses on two factors in
resolving choice-of-law issues: (1) the maintenance of interstate order and (2) the
advancement of the forum state’s interest. See In re Baycol Prods. Litig., 218 F.R.D.
197, 207 (D. Minn. 2003) (stating that only two factors in Minnesota’s usual fivefactor test apply to the resolution of choice-of-law issues arising under tort law) (citing
Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 604 N.W.2d 91, 94–96 (Minn. 2000)).
With respect to the first factor, the court should look to the state with “the most
significant contacts with the facts relevant to the litigation.” Id. Here, that state is
Minnesota, where the plaintiff resides, underwent implantation surgery, and
received follow-up medical care. (See Am. Short Form Compl. ¶ 4, ¶ 11 [ECF No. 26];
Pl.’s Resp. in Opp. To Def.’s Mot. For Summ. J. 1–5 [ECF No. 79]). The second factor,
which requires the court to consider “the state law in which the plaintiff lives and in
which the injury occurred,” also weighs in favor of applying Minnesota law. See, e.g.,
In re Baycol, 218 F.R.D. at 207 (“[A]s the injury occurred in the state of plaintiff’s
residence, the substantive law of the state of plaintiff’s residence should be applied
to their claims.”); Foster v. St. Jude Med., Inc., 229 F.R.D. 599, 605 (D. Minn. 2005)
(“[P]roper consideration of Minnesota’s choice-of-law factors reveals that the law of
the state where the [d]evice was implanted would apply to Plaintiffs’ [products
liability] claims.”).
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Having considered both factors in Minnesota’s choice-of-law test, I find that
Minnesota law governs the plaintiff’s substantive claims in this case. I now turn to
the merits of the pending motions.
III.
Analysis
Ethicon argues it is entitled to summary judgment because the plaintiff’s legal
theories are without evidentiary or legal support. In her Response [ECF No. 77], the
plaintiff withdraws several of the Counts listed in her Amended Short Form
Complaint: Count II, strict liability manufacturing defect; Count IV, strict liability
defective product; Count VI, Fraud; Count VII, fraudulent concealment; Count VIII,
constructive fraud; Count IX, negligent misrepresentation; Count X, negligent
infliction of emotional distress; Count XI, breach of express warranty; Count XII
breach of implied warranty; Count XIII, violation of consumer protection laws; Count
XIV, gross negligence; and Count XV, unjust enrichment. Accordingly, Ethicon’s
Motion with regard to these claims is GRANTED. Below, the court applies the
summary judgment standard to each remaining claim.
A. Statute of Limitations
As a threshold matter, Ethicon argues that the plaintiff ’s remaining strict
liability claims are barred by a four-year statute of limitations. Minn. Stat. Ann.
§ 541.05, subd. 2. This statute incorporates a discovery rule which provides that “a
cause of action does not accrue until two elements are satisfied: ‘(1) a cognizable
physical manifestation of the disease or injury, and (2) evidence of a causal connection
6
between the injury or disease and the defendant’s product, act, or omission.’” Huggins
v. Stryker Corp., 932 F. Supp. 2d 972, 984 (D. Minn. 2013) (quoting Hildebrandt v.
Allied Corp., 839 F.2d 396, 398 (8th Cir. 1987)).
Minnesota’s discovery rule requires that the plaintiff suffer only “some
damage” to trigger the statutory clock. Narum v. Eli Lilly and Co., 914 F. Supp. 317,
320 (D. Minn. 1996). The discovery rule is not, however, “intended to provoke the
premature commencement of claims for temporary sickness or discomfort. Rather, the
plaintiffs are entitled to wait until the cause has been rationally identified.”
Hildebrandt, 839 F.2d at 399 (applying Minnesota law). Ultimately, a plaintiff ’s claim
accrues when she “is aware of both her injury and the likely cause of her injury,” and
“waiting for a more serious injury to develop from the same cause” will not delay the
accrual date. Klempka v. G.D. Searle & Co., 963 F.2d 168, 170 (8th Cir. 1992).
Ethicon asserts that Ms. Kivel identified the PS as the cause of her injury when
she reported suffering from pain to Dr. Sharpe, her implanting physician, on
November 16, 2007, approximately two years after the PS was implanted. Mem. in
Sup. 6 [ECF No. 68]. Ms. Kivel testified that she did not attribute her symptoms to
the PS—and, in turn, to Ethicon—until she saw a television advertisement referring
to “the defectiveness of mesh” in 2011. Kivel Dep. 32:21–33:6, Nov. 4, 2015 [ECF No.
77-2]. Plaintiff also argues that the earliest possible date Ms. Kivel could have known
that the PS was causing her problems was when the FDA issued a Public Health
Notification on October 20, 2008. Resp. 6 [ECF No. 77]. The plaintiff asserts that Dr.
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Sharpe had given Ms. Kivel no reason to believe that her injuries were caused by the
PS product before that time. Id. at 7. In fact, Dr. Sharpe testified that, at the time of
Ms. Kivel’s November 2007 visit, Dr. Sharpe primarily attributed the plaintiff ’s pain
to scarring and contracting of an incision from the implantation surgery and “the
physical findings related to the graft itself were absolutely unremarkable.” Sharpe
Dep. 110:5–111:7, 113:19–21, Dec. 16, 2015 [ECF No. 77-2].
In light of the evidence proffered by Ms. Kivel and the defendants, there is a
genuine dispute of material fact as to when Ms. Kivel was aware of the causal
connection between the PS and her injuries. See Hildebrandt, 839 F.2d at 398
(explaining that the statute of limitations begins to run with “(1) a cognizable physical
manifestation of the disease or injury, and (2) evidence of a causal connection between
the injury or disease and the defendant’s product, act, or omission”). Accordingly,
Ethicon’s Motion for Summary Judgment with regard to statute of limitations is
DENIED.
B. Strict Liability
Minnesota has adopted the doctrine of strict liability for defective products set
forth in section 402A of the Restatement (Second) of Torts. See Lee v. Crookston Coca-
Cola Bottling Co., 188 N.W.2d 426, 432 (Minn. 1971); Kapps v. Biosense Webster, Inc.,
813 F. Supp. 2d 1128, 1146 (D. Minn. 2011).
Section 402A provides:
(1)
One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to
8
liability for physical harm thereby caused to the ultimate user or
consumer, or to his property, if
(a)
(b)
(2)
the seller is engaged in the business of selling such a product,
and
it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
The rule stated in Subsection (1) applies although
(a)
the seller has exercised all possible care in the preparation and
sale of his product, and
(b)
the user or consumer has not bought the product from or
entered into any contractual relation with the seller.
Restatement (Second) of Torts § 402A (Am. Law Inst. 1965). Under this doctrine,
Minnesota “imposes liability, without proof of negligence or privity of contract, upon
a manufacturer or seller for injury caused by a dangerously defective product.” Lee,
188 N.W.2d at 432.
1.
Design Defect
In Minnesota, a plaintiff bringing a design defect claim under strict liability
must prove, through an objective “reasonable care balancing test,” that a defendant
failed to execute reasonable care. Bilotta v. Kelley Co., Inc., 346 N.W. 2d 616, 621–22
(Minn. 1984). This balancing test requires “a balancing of the likelihood of harm, and
the gravity of harm if it happens, against the burden of the precaution which would
be effective to avoid the harm.” Id. at 621 (quoting Holm v. Sponco, 324 N.W. 2d 207,
212 (Minn. 1982)). On one side of the balancing test, a court must consider “the
relative costs and benefits of an allegedly defective design.” Kapps, 813 F. Supp. 2d
at 1161. On the other side, a court will weigh “the relative costs and benefits of one of
9
two different things: either (1) a proposed alternative design, or (2) the removal of the
challenged product from the market.” Id. “In almost every design defect case, a
plaintiff will demonstrate a safer design as part of establishing liability.” Block v.
Toyota Motor Corp., 5 F. Supp. 3d 1047, 1067 (D. Minn. 2014). Indeed, “[o]nly in rare
cases,” will a plaintiff prevail in her claim by arguing that a product “should be
removed from the market rather than be redesigned.” Block, 5 F. Supp. 3d at 1067;
Kallio v. Ford Motor Co., 407 N.W. 2d 92, 96–7 (Minn. 1987).
Ethicon’s Motion seeks summary judgment on the plaintiff ’s design defect
claims on the basis that the plaintiff has neither shown the existence of a safer
alternative design nor presented evidence to show that the PS was so dangerous that
it should have been removed from the market. The plaintiff, however, has proffered
evidence of an alternative design and has produced evidence that the purported safer
alternative designs would have reduced Ms. Kivel’s injuries, would not have affected
the product’s utility, and would have been economically and technologically feasible.
Accordingly, the court finds that there remains a genuine dispute of material fact
regarding the existence of a safer alternative design under Minnesota law. Ethicon’s
Motion on the plaintiff ’s strict liability design defect claim is DENIED.
2.
Failure to Warn
Minnesota, like many jurisdictions, has adopted the learned intermediary
doctrine, which applies to strict liability claims. Kapps, 813 F. Supp. 2d at 1152 (citing
Mulder v. Parke Davis & Co., 181 N.W. 2d 882, 885 n.1 (Minn. 1970)). Under this
10
doctrine, “a maker of drugs or medical devices has a duty to warn only doctors (the
learned intermediaries)—and not patients—about the dangers associated with a drug
or medical device.” Id. Therefore, a strict liability claim fails when a medical-device
manufacturer provides an adequate warning to a plaintiff ’s doctor. Id. A strict
liability claim will also fail if a plaintiff fails to prove that the allegedly inadequate
warning caused the plaintiff ’s injures; the causal chain is broken when a doctor (1) is
fully aware of the information that a medical-device manufacturer “wrongly failed to
provide” and (2) the doctor “would have taken the same action even if the defendant
had included that information in the warning.” Id. (citing Cornfeldt v. Tongen, 262
N.W. 2d 684, 698 (Minn. 1977)). Both the adequacy of the warning and causation are
questions of fact to be resolved by the jury. Balder v. Haley, 399 N.W. 2d 77, 81 (Minn.
1987).
Here, the plaintiff has offered evidence from which a reasonable juror could
return a verdict in her favor, and genuine disputes of material fact exist with regard
to (1) whether Ethicon’s warning was adequate, and (2) whether the alleged
inadequate warning proximately caused the alleged harm to Ms. Kivel. Therefore,
Ethicon’s Motion for Summary Judgment on Ms. Kivel’s strict liability for failure to
warn claim is DENIED.
C. Negligence
Under Minnesota law, “[t]he distinction between strict liability and negligence
in design-defect and failure-to-warn cases is that in strict liability, knowledge of the
11
condition of the product and the risks involved in that condition will be imputed to
the manufacturer, whereas in negligence these elements must be proven. Bilotta v.
Kelley Co., 346 N.W.2d 616, 622 (Minn. 1984). Ultimately, however, “with respect to
failure-to-warn and design-defect claims, the theories of negligence and strict liability
are effectively merged into a single theory of products liability” once it goes to a jury.
Kapps, 813 F. Supp. 2d at 1146 (citing Bilotta, 346 N.W.2d at 623).
Here, Ethicon argues only that summary judgment is proper on these claims
because the claims are duplicative of the strict liability claims. As discussed above,
the plaintiff has proffered sufficient evidence regarding the alleged existence of a
safer alternative design and lack of an adequate warning. Additionally, the plaintiff’s
negligence claims are not contingent on the outcome of her strict liability claims; they
are independent claims and not merged into a single theory until they go to the jury.
Ethicon’s Motion regarding the plaintiff’s negligence claims is DENIED.
D. Punitive Damages and Discovery Rule & Tolling
Ethicon asserts that its Motion challenges all of the plaintiff ’s claims, which
include punitive damages and discovery rule and tolling. Mot. Summ. J., at 1.
Ethicon, however, does not present any arguments regarding these claims. The court
will not make arguments for Ethicon. Accordingly, Ethicon’s Motion regarding the
plaintiff ’s claims for punitive damages and discovery rule and tolling is DENIED.
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IV.
Conclusion
For the reasons discussed above, it is ORDERED that Ethicon’s Motion for
Summary Judgment [ECF No. 67] is GRANTED in part and DENIED in part. As the
plaintiff has conceded these claims, Ethicon’s Motion is GRANTED with regard to the
plaintiff ’s claims for: Count II, strict liability manufacturing defect; Count IV, strict
liability defective product; Count VI, Fraud; Count VII, fraudulent concealment;
Count VIII, constructive fraud; Count IX, negligent misrepresentation; Count X,
negligent infliction of emotional distress; Count XI, breach of express warranty;
Count XII breach of implied warranty; Count XIII, violation of consumer protection
laws; Count XIV, gross negligence; and Count XV, unjust enrichment. Ethicon's
Motion regarding the plaintiff’s strict liability design defect, strict liability failure to
warn and negligence claims is 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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December 19, 2016
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