Mullins et al v. Johnson & Johnson et al
Filing
1561
MEMORANDUM OPINION AND ORDER (Defendants Motion for Partial Summary Judgment re: Cora Tomblin, No. 2:14-cv-14664) granting Ethicon's 1183 Motion for Partial Summary Judgment, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 1/20/2017. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TERRESKI MULLINS, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 2:12-cv-02952
ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Partial Summary Judgment
re: Cora Tomblin, No. 2:14-cv-14664)
Pending before the court is the defendants’ Motion for Partial Summary
Judgment [ECF No. 1183]. As set forth below, the defendants’ Motion is GRANTED.
I.
Background
This case represents the consolidation of twenty-six out of nearly 28,000 cases
filed against Ethicon, Inc. and Johnson & Johnson, Inc. (collectively “Ethicon”). The
Ethicon MDL is one of seven MDLs assigned to me related to pelvic mesh, collectively
encompassing over 60,000 cases. This action involves twenty-six West Virginia
plaintiffs who were implanted with Tension-free Vaginal Tape (“TVT”), a mesh
product manufactured by Ethicon to treat stress urinary incontinence (“SUI”). These
cases have been consolidated on all claims. See Pretrial Order No. 184 [ECF No. 25]
(“PTO”); Fourth Am. Docket Control Order [ECF No. 258]; Order, Dec. 27, 2016, at 2
[ECF No. 1527] (“The trial will address all triable issues in each 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).
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
“[B]ecause the plaintiffs are West Virginia residents and had their surgeries
at hospitals in West Virginia, the cases solely implicate West Virginia law.” Pretrial
Order No. 184 at 4 (citing McKinney v. Fairchild Intern., Inc., 487 S.E.2d 913, 922
(W. Va. 1997) (“Traditionally, West Virginia courts apply the lex loci delicti choice-oflaw rule; that is, the substantive rights between the parties are determined by the
law of the place of injury.”)). Accordingly, West Virginia law governs the
plaintiff’s case.
III.
Analysis
Ethicon argues it is entitled to summary judgment because the plaintiff’s
claims are barred by the statute of limitations.
A.
Statue of Limitations
The plaintiff’s claims are governed by a two-year statute of limitations. See W.
Va. Code § 55-2-12. West Virginia applies the discovery rule to the statute of
limitations:
In tort actions, unless there is a clear statutory prohibition to its
application, under the discovery rule the statute of limitations begins to
run when the plaintiff knows, or by the exercise of reasonable diligence,
should know (1) that the plaintiff has been injured, (2) the identity of
the entity who owed the plaintiff a duty to act with due care, and who
may have engaged in conduct that breached that duty, and (3) that the
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conduct of that entity has a causal relation to the injury.
Syl. pt. 4, Gaither v. City Hosp., Inc., 487 S.E.2d 901, 903 (W. Va. 1997). The Supreme
Court of Appeals of West Virginia has elaborated, “Where a plaintiff knows of his
injury, and the facts surrounding that injury place him on notice of the possible
breach of a duty of care, that plaintiff has an affirmative duty to further and fully
investigate the facts surrounding that potential breach.” McCoy v. Miller, 578 S.E.2d
355, 359 (W. Va. 2003).
The plaintiff’s claims are barred by the statute of limitations because, at the
very latest, her claims accrued in 2007; thus, her claims expired in 2009. Throughout
her deposition, the plaintiff stated that by 2007 she was aware the TVT was the likely
cause of her injuries:
Q.
What did Dr. Edwards say about the mesh that you believe he
was implying something was wrong with it?
A.
[H]e made an appointment with me because I was having
problems peeing, and he tried to adjust it in the office. It was in
’07 and . . . he said there was a kink in it.
Q.
He told you in 2007 there was a kink in your mesh?
A.
Yes.
...
Q.
And he told you that he believed there was a kink in your mesh?
A.
Well, like, where you pee, like, the hose you pee out of?
Q.
Yes.
A.
There’s, like, there was a kink in it that kept me from peeing.
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Q.
And did Dr. Edwards tell you then in 2007 that he thought that
that was caused by your mesh?
A.
Yes.
...
Q.
And what kind of complaints were you having in 2007 that caused
you to go see Dr. Edwards?
A.
I couldn’t pee. I, I felt the urge to pee; but when I’d sit down, it
wouldn’t come out.
Q.
And did that cause you pain like you described to me earlier?
A.
Yes, ma’am. It’s very painful . . . .
...
Q.
How long was it between this revision or adjustment that Dr.
Edwards did in 2007 before you started seeing Dr. Wyner?
A.
I don’t know, maybe two or there years. I just dealt with it the
best way I could . . . .
...
Q.
[D]id anyone, a doctor or one of your partners, tell you that the
rubbing feeling you had during sexual intercourse within six
months of your surgery, did they ever tell you that that was the
mesh?
A.
Later on in life they told me, thought it was the mesh—
Q.
How much later?
A.
—because they told me there was a kink. Oh, this is about ’07, I
think; because they did a readjustment.
...
Q.
And you complained to Dr. Edwards, you believe, before he did
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the procedure in 2007?
A.
Yeah.
Q.
And at that time he advised you he thought it was related to your
mesh.
A.
I think so, yeah.
Cora Tomblin Dep. 48:13–23, 49:10–19, 50: 5–11, 50:18-22, 141:14–24, 153:24–154:5,
April 25, 2016 [ECF No. 1183-2].
Despite the plaintiff’s own deposition testimony, the plaintiff argues that
genuine disputes of material fact exist because, for example, Dr. Edwards “does not
have any records reflecting an appointment in 2007.” Resp. 3 [ECF No. 1278]. The
plaintiff futher sates that “according to [Dr. Edwards’s] records that do exist[,] the
first time he saw Ms. Tomblin after her 2005 surgery was in January 2013.” Id. at 3–
4. Moreover, the plaintiff states that “Dr. Edwards does not have any recollection (or
any corresponding records) of ever diagnosing Ms. Tomblin as having a ‘kink’ in the
mesh.” Id. at 4. The plaintiff’s arguments, however, are inconsequential.
Dr. Edwards testified that he was unable to locate any clinical records from
2007—not just records specific to the plaintiff. See Dr. Edwards Dep., 37:13–17, May
18, 2016 [ECF No. 1183-19]. Further, Dr. Edwards acknowledged that there was a
“chronological gap” in his records for the plaintiff between 2005 and 2012. Id. at
38:11–13. Importantly, when questioned about the plaintiff’s testimony regarding a
2007 appointment with him concerning the plaintiff’s TVT mesh complications, Dr.
Edwards stated that it is possible that the appointment did, in fact, occur:
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Q.
In her deposition, Ms. Tomblin recounted that you told her in
2007 she had a kink in the mesh. Do you remember that
conversation?
A.
I don’t. I don’t recall.
Q.
Is it possible that conversation occurred?
A.
It’s possible.
Id. at 39:24–40:5. Thus, there are no genuine disputes of material fact on this point.
The plaintiff repeatedly acknowledged in her deposition that by 2007 she believed
that her TVT device was the source of several complications. The fact that Dr.
Edwards is unable to locate clinical records from the applicable period or is unable to
remember a specific conversation with a specific patient many years later does not
create a genuine dispute of material fact; instead, Dr. Edwards’s testimony simply
shows that he is unable to refute the plaintiff’s testimony.
Accordingly, the court FINDS that the plaintiff’s claims regarding the TVT
device accrued in 2007 and expired in 2009. Thus, the plaintiff’s present claims are
barred by the applicable statute of limitations.
IV.
Conclusion
For the reasons discussed above, it is ORDERED that Ethicon’s Motion for
Partial Summary Judgment [ECF No. 1183] is GRANTED.
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 20, 2017
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