McBrayer et al v. Johnson & Johnson et al
Filing
185
MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) granting in part and denying in part 93 MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 1/6/2017. (cc: counsel of record; any unrepresented party) (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
DEE MCBRAYER, ET AL.,
Plaintiffs,
v.
Civil Action No. 2:12-cv-00779
ETHICON, INC., ET AL.,
Defendants.
MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Summary Judgment)
Pending before the court is a Motion for Summary Judgment [ECF No. 93] filed
by defendants Ethicon, Inc. and Johnson & Johnson (collectively “Ethicon”) against
plaintiffs Dee and Timothy McBrayer. The plaintiffs filed a Response [ECF No. 105]
and Ethicon filed a Reply [ECF No. 108]. As set forth below, Ethicon’s Motion is
GRANTED in part and DENIED in part.
I. Background
This case resides in one of seven MDLs assigned to me 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 MDL. 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. Plaintiffs’ case was
selected as a Wave 1 case.
Ms. McBrayer was implanted with the Prolift, a product manufactured by
Ethicon, on or around July 30, 2007 at Carolinas Medical Center, Charlotte, North
Carolina by Doctor Gerald Bernard Taylor. Am. Short Form Compl. ¶ 8–12 [ECF No.
17]. She is a resident of North Carolina. Id. ¶ 4. Ethicon moves for summary judgment
on all of the plaintiffs’ substantive claims.1 Defs.’ Mem. Supp. Mot. Summ. J. 1 [ECF
No. 94].
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
Ethicon does not address Count XVII (punitive damages) or Count XVIII (discovery and rule tolling).
I do not make any rulings as to those counts.
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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).
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:
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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).
If a plaintiff files her claim directly into the MDL in the Southern District of
West Virginia, however, as the plaintiffs did in this case, I consult the choice-of-law
rules of the state in which the implantation surgery took place. See Sanchez v. Boston
Scientific Corp., 2:12-cv-05762, 2014 WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014)
(“For cases that originate elsewhere and are directly filed into the MDL, I will follow
the better-reasoned authority that applies the choice-of-law rules of the originating
jurisdiction, which in our case is the state in which the plaintiff was implanted with
the product.”). Thus, the choice-of-law principles of North Carolina guide this court’s
choice-of-law analysis.
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The parties appear to agree, as does this court, that these principles compel
application of North Carolina law. For tort claims, North Carolina generally applies
the lex loci delicti approach, which provides that “the state where the injury occurred
is considered the situs of the claim.” Harco Nat’l Ins. Co. v. Grant Thornton LLP, 698
S.E.2d 719, 722–23 (N.C. Ct. App. 2010) (quoting Boudreau v. Baughman, 368 S.E.2d
849, 853–54 (N.C. 1988)). Here, the alleged injury occurred in North Carolina, where
Ms. McBrayer was implanted with the allegedly defective device. Thus, I apply North
Carolina’s substantive law to the tort claims in this case. For warranty claims, North
Carolina applies the “most significant relationship” approach, which “requires the
forum to determine which state has the most significant relationship to the case.”
Boudreau, 368 S.E.2d at 853–54. North Carolina courts have found that the state of
“the place of sale, distribution, delivery, and use of the product, as well as the place
of injury [is] the state with the most significant relationship to the warranty claims.”
Id. at 855–56. Thus, I also apply North Carolina’s substantive law to the warranty
claims in this case.
III.
Analysis
Ethicon argues it is entitled to summary judgment because the plaintiffs’ legal
theories are without evidentiary or legal support.
A.
Statute of Limitations
As a threshold matter, Ethicon argues that the plaintiffs’ claims are barred
because the statute of limitations period expired before the plaintiffs filed their
original complaint. “[W]hether a cause of action is barred by the statute of limitations
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is a mixed question of law and fact” unless the facts are not in conflict, in which case
the question becomes one of law. Pembee Mfg. Corp. v. Cape Fear Const. Co., 329
S.E.2d 350, 353 (N.C. 1985) (citations omitted). “Where, however, the evidence is
sufficient to support an inference that the cause of action is not barred, the issue is
for the jury.” Little v. Rose, 208 S.E.2d 666, 668 (N.C. 1974) (citations omitted).
The parties agree that the primary applicable statute in this case is N.C. Gen.
Stat. § 1-52, which provides a three-year period of limitations for personal injury
claims sounding in negligence. See N.C. Gen. Stat. § 1-52; Driggers v. Sofamor,
S.N.C., 44 F. Supp. 2d 760, 766 (M.D.N.C. 1998). The statute provides, in relevant
part: “[F]or personal injury or physical damage to claimant’s property, the cause of
action . . . shall not accrue until bodily harm to the claimant or physical damage to
his property becomes apparent or ought reasonably to have become apparent to the
claimant . . . .” N.C. Gen. Stat. Ann. § 1-52(16). At common law, a plaintiff’s cause of
action would accrue at the time of injury, regardless of the plaintiff’s awareness of
the injury. Pembee, 329 S.E.2d at 353. The purpose of the statute is to “modify the
sometimes harsh common law rule by protecting a potential plaintiff in the case of a
latent injury by providing that a cause of action does not accrue until the injured
party becomes aware or should reasonably have become aware of the existence of the
injury.” Id. at 354.
Plaintiffs argue that to the extent their claims are based on fraud, they are not
time-barred under N.C. Gen. Stat. § 1-52(9). That section provides: “For relief on the
ground of fraud or mistake; the cause of action shall not be deemed to have accrued
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until the discovery by the aggrieved party of the facts constituting the fraud or
mistake.” N.C. Gen. Stat. § 1-52(9). Ethicon does not respond to this argument.
In this case, Ethicon presents ample evidence that could support a reasonable
jury’s finding that Ms. McBrayer’s bodily harm was apparent or reasonably should
have been apparent to the plaintiffs more than three years before they filed their
complaint. However, viewing the record in the light most favorable to the nonmoving
party, I FIND that a reasonable jury could determine that Ms. McBrayer’s bodily
harm was not apparent, and ought not to have been reasonably apparent, to the
plaintiffs more than three years before they filed their complaint. Therefore,
Ethicon’s Motion is DENIED as to the statute of limitations issue.
B.
Counts II, IV, V, VI, VII, VIII, X, and XV
The plaintiffs expressly withdraw the following counts that they asserted in
the Amended Short Form Complaint: Count II (strict liability – manufacturing
defect), Count IV (strict liability – defective product), Count V (strict liability – design
defect), Count VI (common law fraud), Count VII (fraudulent concealment), Count
VIII (constructive fraud), Count X (negligent infliction of emotional distress), and
Count XV (unjust enrichment). Pls.’ Resp. to Defs.’ Mot. Summ. J. [ECF No. 105].
Accordingly, Ethicon’s Motion with regard to these claims is GRANTED.
C.
Count III (Strict Liability – Failure to Warn)
North Carolina law provides: “There shall be no strict liability in tort in
product liability actions.” N.C. Gen. Stat. Ann. § 99B-1.1. North Carolina law also
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recognizes an action sounding in negligence for failure to warn. N.C. Gen. Stat. § 99B5(a).
Here, the plaintiffs oppose Ethicon’s Motion on Count III (Strict Liability –
Failure to Warn). Pls.’ Resp. to Defs.’ Mot. Summ. J. [ECF No. 105]. However, the
plaintiffs’ arguments regarding failure to warn rely on § 99B-5(a) of the statute and
do not address strict liability. Pls.’ Mem. Supp. Resp. to Defs.’ Mot. Summ. J. 7–14
[ECF No. 106]. I thus interpret plaintiffs’ failure to warn claim as sounding in
negligence. I address Ethicon’s Motion with regard to the negligent failure to warn
claim in Section F below. To the extent that the plaintiffs also assert a separate claim
sounding in strict liability, Ethicon’s Motion on that point is GRANTED.
D.
Count IX (Negligent Misrepresentation)
The North Carolina Supreme Court has not ruled on whether negligent
misrepresentation is a viable theory of recovery in products liability cases causing
personal injury rather than pecuniary loss. In the absence of such guidance, “the
state’s intermediate appellate court decisions ‘constitute the next best indicia of what
state law is . . . .’” Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1156
(4th Cir. 1992). The North Carolina Court of Appeals has indicated that, in products
liability cases causing personal injury, the state does not recognize negligent
misrepresentation as a theory of recovery independent from a traditional negligence
claim. That court held that North Carolina has “adopted the Restatement 2d
definition of negligent misrepresentation and . . . the action lies where pecuniary loss
results from the supplying of false information to others for the purpose of guiding
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them in their business transactions.” Michael v. Huffman Oil Co., 661 S.E.2d 1, 11
(N.C. Ct. App. 2008) (quoting Driver v. Burlington Aviation, Inc., 430 S.E.2d 476, 480
(N.C. Ct. App. 1993) (gathering cases)). However, that court did not find “any case in
which the theory of negligent misrepresentation was approved as a basis for recovery
for personal injury.” Id. (quoting Driver, 430 S.E.2d at 481) (finding that plaintiffs’
allegations
of
negligent
misrepresentation
by
product
manufacturer
were
nonetheless “sufficient to state a claim for relief based upon traditional negligence
rules”).
Here, although the plaintiffs oppose Ethicon’s motion for summary judgment
on Count IX, the plaintiffs do not offer any authority in support of their argument
that negligent misrepresentation is a viable claim, independent of traditional
negligence, on the facts of this case. Accordingly, Ethicon’s Motion on this point is
GRANTED.
E.
Count XII (Breach of Implied Warranty)
North Carolina law provides for both the implied warranty of merchantability,
N.C. Gen. Stat. § 25-2-314(1), and the implied warranty of fitness for a particular
purpose, N.C. Gen. Stat. § 25-2-315. Ethicon’s motion for summary judgment on the
plaintiffs’ breach of implied warranty of merchantability claim is addressed below in
Section F. Ethicon’s motion for summary judgment on the plaintiffs’ breach of implied
warranty of fitness for a particular purpose is addressed here.
Under North Carolina law, “[w]here the seller at the time of contracting has
reason to know any particular purpose for which the goods are required and that the
buyer is relying on the seller’s skill or judgment to select or furnish suitable goods,
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there is” an implied warranty that the goods are fit for that particular purpose. N.C.
Gen. Stat. § 25-2-315. Critically, “[a] ‘particular purpose’ differs from the ordinary
purpose for which the goods are used in that it envisages a specific use by the buyer
which is peculiar to the nature of his business . . . .” Id. cmt. 2. On the other hand,
“the ordinary purposes for which goods are used are those envisaged in the concept
of merchantability and go to uses which are customarily made of the goods in
question.” Id.
Here, the plaintiffs do not dispute that the Prolift was sold for its ordinary
purpose—to treat SUI and POP—and not a particular purpose native to the plaintiffs’
circumstances. See Foyle ex rel. McMillan v. Lederle Labs., 674 F. Supp. 530, 535
(E.D.N.C. 1987) (“In the present case the DPT vaccine had the ordinary purpose of
preventing the contraction of disease. There was no particular purpose, native to the
plaintiff’s position, that would implicate the implied warranty for a particular
purpose.”). Therefore, Ethicon’s Motion for Summary Judgment on the plaintiffs’
breach of implied warranty of fitness for a particular purpose claim is GRANTED.
F.
Remaining Claims
After considering the parties’ proffered arguments and evidence, I FIND that
genuine disputes of material fact exist regarding the plaintiffs’ remaining claims.
Accordingly, to the extent Ethicon’s Motion challenges any other claims, the Motion
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. 93] is GRANTED in part and DENIED in part.
Ethicon’s Motion on the following claims is GRANTED: 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 VI
(common law fraud), Count VII (fraudulent concealment), Count VIII (constructive
fraud), Count IX (negligent misrepresentation), Count X (negligent infliction of
emotional distress), Count XII (breach of implied warranty of fitness for a particular
purpose), and Count XV (unjust enrichment).
Ethicon’s Motion on the following claims is DENIED: Count I (negligence,
including negligent failure to warn), Count XI (breach of express warranty), Count
XII (breach of implied warranty of merchantability), Count XIII (violation of
consumer protection laws), Count XIV (gross negligence), Count XVI (loss of
consortium).
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 6, 2017
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