Kowalski v. Ethicon, Inc et al

Filing 68

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) Ethicon's 58 Motion for Summary Judgment is GRANTED in part and DENIED in part. Ethicon's Motion is GRANTED with regard to the following claims: (II) strict liabi lity - manufacturing defect, (IV) strict liability - defective product, (VII) fraudulent concealment, (VIII) constructive fraud, (XI) breach of express warranty, and (XII) breach of implied warranty. Ethicon's Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 3/10/2017. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JUDITH KOWALSKI,
Plaintiff,
v.

CIVIL ACTION NO. 2:12-cv-01323

ETHICON, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Summary Judgment)
Pending before the court is the Motion for Summary Judgment [ECF No. 58]
filed by defendants Ethicon, Inc. and Johnson & Johnson (collectively, “Ethicon”). As
set forth below, Ethicon’s Motion is GRANTED in part and DENIED in part.
I.

Background
This action involves a Texas plaintiff who was implanted with mesh products

manufactured by Ethicon, Gynecare Prolift Pelvic Floor Repair System (“Prolift”), on
February 25, 2008, and Tension-free Vaginal Tape Obturator (“TVT-O”), on June 16,
2008. Am. Short Form Compl. [ECF No. 27] ¶¶ 1–12. The 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 60,000 cases
currently pending, nearly 28,000 of which are in the 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. 206, In re Ethicon, Inc. Pelvic Repair Sys. Prods.

Liab.

Litig.,

No.

2:12-md-002327,

Nov.

20,

2015,

available

at

http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. The plaintiff ’s case was
selected as an “Ethicon Wave 2 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
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).
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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
Ms. Kowalski originally filed her claim in the Eastern District of Texas. See
Compl. [ECF No. 1]. Thus, the choice-of-law principles of Texas guide the court’s
choice-of-law analysis. See Klaxon Co. v. Stentor Elect. Mfg. Co., 313 U.S. 487, 496
(1941).
The parties agree, as does the court, that these principles compel application
of Texas substantive law to the plaintiff’s claims. In tort actions, Texas adheres to the
Restatement (Second) of Conflict of Laws (Am. Law Inst. 1971). Gutierrez v. Collins,
3

583 S.W.2d 312, 318 (Tex. 1979). Under section 145 of the Restatement, the court
must apply the law of the state with the most “significant relationship to the
occurrence and the parties.” Here, the plaintiff resides in Texas, and her Prolift and
TVT-O implantation surgeries occurred in Texas. Second Am. Short Form Compl.
¶ 11. Texas has a strong interest in resolving tort actions brought by one of its citizens
for injuries arising from conduct alleged to have occurred within its territorial
jurisdiction. Thus, I will apply Texas substantive law to this case.
III.

Analysis
Ethicon argues it is entitled to summary judgment because the plaintiff’s

claims are without evidentiary or legal support.
A. Conceded Claims
The plaintiff concedes the following claims: (II) strict liability – manufacturing
defect and (IV) strict liability – defective product. Accordingly, Ethicon’s Motion
regarding those claims is GRANTED.
B. Fraudulent Concealment
Under Texas law, fraudulent concealment, or fraud by nondisclosure, is
considered a subcategory of fraud. Blankinship v. Brown, 399 S.W.3d 303, 308 (Tex.
Ct. App. 2013) (citing Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex.
1997)). Fraudulent concealment is not an independent claim. Nelson v. Regions

Mortg., Inc., 170 S.W.3d 858, 862 (Tex. Ct. App. 2005) (“Concealment by silence, or
fraudulent concealment, is a type of misrepresentation. . . . Therefore, we treat []
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complaints of misrepresentation and fraudulent concealment as complaints of
common law fraud.”).
Ethicon’s Motion on Ms. Kowalski’s fraudulent concealment claim (VII) is
GRANTED.
C. Constructive Fraud
Under Texas law, a constructive fraud requires proof of a violation of a fiduciary
relationship. Hubbard v. Shankle, 138 S.W.3d 474, 483 (Tex. Ct. App. 2004). Ms.
Kowalski acknowledges that she does not claim to have a fiduciary relationship with
Ethicon. Mem. Law Supp. Resp. Opp. Summ. J. 16.
Thus, there is no genuine dispute of material fact regarding Ms. Kowalski’s
inability to prove a necessary element of this claim. Ethicon’s Motion on constructive
fraud is GRANTED.
D. Breach of Warranty
Texas law requires a plaintiff to provide a notice of breach of warranty prior to
filing a suit. Tex. Bus. & Com. Code § 2.607(c); see also Hull v. South Coast

Catamarans, L.P., 365 S.W.3d 35, 44 (Tex. Ct. App. 2011) (“Failure to notify the seller
of the breach, thereby allowing the seller an opportunity to cure, bars recovery on the
basis of breach of warranty”). Ms. Kowalski admits she did not provide the requisite
pre-suit notice to Ethicon. Mem. Law Supp. Resp. Opp. Summ. J. 16–17.
Accordingly, Ethicon’s Motion regarding the breach of warranty claims (XI and
XII) is GRANTED.
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E. All Remaining Claims
The court FINDS that genuine disputes of material fact exist regarding the
plaintiff’s remaining claims challenged by Ethicon, including timeliness under Texas’
statutes of limitations. Accordingly, Ethicon’s Motion as to all remaining claims is
DENIED.
IV.

Conclusion
For the reasons discussed above, it is ORDERED that Ethicon’s Motion for

Summary Judgment [ECF No. 58] is GRANTED in part and DENIED in part.
Ethicon’s Motion is GRANTED with regard to the following claims: (II) strict
liability –

manufacturing

defect,

(IV)

strict

liability

–

defective

product,

(VII) fraudulent concealment, (VIII) constructive fraud, (XI) breach of express
warranty, and (XII) breach of implied warranty. Ethicon’s Motion is DENIED in all
other respects.
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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March 10, 2017