Flores-Banda v. Boston Scientific Corporation

Filing 91

ORDER granting in part and denying in part 20 MOTION by Boston Scientific Corporation for Summary Judgment and Memorandum Of Law in Support Based on Statute of Limitations Against Plaintiff Rose-Flores-Banda; BSC's Motion with respect to Ms. Flores-Banda's non-warranty claims is DENIED; Plaintiff's claims for express and implied breach of warranty are DISMISSED, and BSC's Motion on these claims is GRANTED; as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 3/12/2015. (cc: counsel of record; any unrepresented party) (ts)

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

IN RE: BOSTON SCIENTIFIC CORP.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2326
------------------------------------------------------------THIS DOCUMENT RELATES TO THE FOLLOWING CASE:
Rose Flores-Banda v. Boston Scientific Corp.

No. 2:13-cv-4434

Pending before the court is the defendant’s Motion for Summary Judgment Based on
Statute of Limitations (“Motion”) [Docket 20]. For the reasons set forth below, the 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 70,000 cases currently pending, approximately 15,000 of which are in the Boston Scientific
Corp. (“BSC”) MDL, MDL 2326. In an effort to efficiently and effectively manage this massive
MDL, I 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 Daubert motions, summary
judgment motions, and motions in limine, among other things), it can then be promptly
transferred or remanded to the appropriate district for trial. To this end, I ordered the plaintiffs
and defendant to each select 50 cases, which would then become part of a “wave” of cases to be
prepared for trial and, if necessary, remanded. (See Pretrial Order # 65, In re: Boston Scientific

Corp. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-002326, entered Dec. 19, 2013,
available at http://www.wvsd.uscourts.gov/MDL/boston/orders.html). This selection process
was completed twice, creating two waves of 100 cases, Wave 1 and Wave 2. The plaintiff’s case
was selected as a Wave 2 case by Ms. Flores-Banda.
On December 12, 2005, Ms. Flores-Banda was surgically implanted with the Obtryx
Transobturator Mid-Urethral Sling System (the “Obtryx”), a product manufactured by BSC to
treat SUI. (See BSC’s Mot. for Summ. J. & Mem. of Law in Supp. (“Mem. in Supp.”) [Docket
20], at 2). She received her surgery at a hospital in Texas. (Id.). Ms. Flores-Banda claims that as
a result of implantation of the Obtryx, she has experienced multiple complications, including
pain, urinary problems, and erosion. (Id. at 3). She brings the following claims against BSC:
strict liability for design defect, manufacturing defect, and failure to warn; negligence; breach of
express and implied warranty; and punitive damages. (Short Form Compl. [Docket 1], at 5). In
the instant motion, BSC argues that each of the plaintiff’s claims is barred by Texas’s statute of
limitations, and consequently, the court should grant summary judgment in favor of BSC and
dismiss Ms. Flores-Banda’s case.
II.

Legal Standards
A. Summary Judgment

To obtain summary judgment, the moving party must show that there is no genuine issue
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

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the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. 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 Felty v. Graves-Humphreys Co., 818
F.2d 1126, 1128 (4th Cir. 1987); Ross v. Comm’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.
1985), abrogated on other grounds, 490 U.S. 228 (1989).
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
based on the statute of limitations, I generally refer to the choice-of-law rules of the jurisdiction
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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. 2:08md-01968, 2010 WL 2102330, at *7 (S.D. W. Va. May 25, 2010). However, if a plaintiff files
her claim directly into the MDL in the Southern District of West Virginia, as Ms. Flores-Banda
did in this case, I consult the choice-of-law rules of the state in which the plaintiff was implanted
with the product. 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.”). Ms. Flores-Banda received the Obtryx implantation surgery in Texas. Thus, the
choice-of-law principles of Texas guide this court’s choice-of-law analysis.
The parties agree, as does this court, that these principles compel application of Texas
law to the plaintiff’s claims. In tort actions, Texas adheres to the Restatement (Second) of
Conflict of Laws. Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex. 1979). Under Section 145 of
the Second Restatement, the court must apply the law of the state with the most “significant
relationship to the occurrence and the parties.” Here, Ms. Flores-Banda resides in Texas, the
product at issue was purchased in Texas, and the product was implanted in Texas. Thus, I apply
Texas’s substantive law—including Texas’s statutes of limitations—to this case.
III.

Discussion

Because this case prompts two different statutes of limitations, I split my analysis into

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two categories: (1) Ms. Flores-Banda’s non-warranty claims, which have a two-year statute of
limitations; and (2) Ms. Flores-Banda’s warranty claims, which have a four-year statute of
limitations.
A. Non-Warranty Product Liability Claims
Under Texas law, the statute of limitations for personal injury actions is two years. Tex.
Civ. Prac. & Rem. Code Ann. § 16.003(a). Accordingly, a plaintiff must file her claims within
two years of the date the alleged wrongful act caused her injury. Childs v. Haussecker, 974
S.W.2d 31, 36 (Tex. 1998). This period, however, may be tolled by application of the discovery
rule. The discovery rule tolls accrual “until a plaintiff knows or, through the exercise of
reasonable care and diligence, should have known of the wrongful act and resulting injury.” Id.
(internal quotations and citation omitted); see also Woodruff v. A.H. Robbins Co., 742 F.2d 228,
230 (5th Cir. 1984) (“[T]he Texas discovery rule . . . provides that certain ‘inherently
undiscoverable causes of action’ do not accrue until the plaintiff learns or reasonably should
have learned of the negligent cause . . . .”).
Ms. Flores-Banda filed this action on March 6, 2013. (Short Form Compl. [Docket 1]).
BSC argues that Ms. Flores-Banda knew or should have known of the wrongful act and resulting
injury on March 20, 2006. (See Mem. in Supp. [Docket 20], at 8). By that date, BSC generally
argues, Ms. Flores-Banda experienced the injuries alleged in her case, sought medical treatment
for those injuries, and underwent surgery to have the Obtryx removed. (Id.). More specifically,
BSC references the following facts in support: (1) Dr. Guillermo Rowe recorded notes, wherein
he suggested the possibility that the entire Obtryx needed to be removed; (2) Ms. Flores-Banda
personally attributed her health issues to the Obtryx; and (3) Ms. Flores-Banda decided to have
the Obtryx removed after consulting with Dr. Steven D. Maislos. (Id. at 7–8). When viewed in

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the light most favorable to the nonmovant, the facts are not as indisputable as BSC frames them
to be.
First, with regard to Dr. Rowe’s statement that the Obtryx needed to be removed, it is
important to point out that Dr. Rowe offered no opinion on the specific cause of Ms. FloresBanda’s complications. (Rowe Dep. [Docket 55-3], at 61:13-61:16; 64:8-64:24). Moreover, as
BSC admits, Dr. Rowe only considered removal of the Obtryx in 2006; he did not unequivocally
express the need to do so. (See Dr. Guillermo Rowe’s Notes Dated January 30, 2006 [Docket 203]; Rowe Dep. [Docket 20-1], at 33:4-33:15). Accordingly, a reasonable juror could find that Ms.
Flores-Banda was not aware, and should not have been aware, of the wrongful act and resulting
injury. To hold otherwise would require this court to make impermissible inferences in the
moving party’s favor.
Second, a reasonable juror could find that Ms. Flores-Banda’s belief that her injuries
were caused by the Obtryx was merely subjective, which does not suffice to establish accrual
under Texas law. Childs, 974 S.W.2d at 43 (“[A] diligent plaintiff’s mere suspicion or subjective
belief that a causal connection exists between [the wrongful cause] and his symptoms is,
standing alone, insufficient to establish accrual as a matter of law.”).1 Importantly, Texas law on
this point differs from that of other jurisdictions as applied in factually similar cases. See, e.g.,
Smothers v. Boston Scientific Corp., Case No. 2:12-cv-04078 (S.D. W. Va. July 11, 2014)
(holding that the plaintiff’s claims were barred in light of her deposition testimony because,
under Massachusetts law, the plaintiff cannot survive summary judgment if she cannot
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In the related context of latent diseases, the Supreme Court of Texas has even explained that “[a] cause of action
should not be deemed to accrue absent some objective verification of a causal connection between injury and [the
wrongful cause of the injury], provided that the failure to obtain that verification is not occasioned by a lack of due
diligence.” Id.; see also In re Mirapex Prods. Liab. Litig., 735 F. Supp. 2d 1113, 1119 (D. Minn. 2010) (applying
Texas law) (“‘Objective verification’ does not mean a scientific study is required before a claim will accrue; it
simply means the limitations clock does not start running the first time a plaintiff entertains subjective, unverified
suspicions about what is causing his illness.”).

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“demonstrate a reasonable expectation of proving the claim was timely filed”). Accordingly,
here, without some sort of objective verification that the Obtryx caused Ms. Flores-Banda’s
injuries, summary judgment is not warranted under application of Texas’s discovery rule.
Finally, a reasonable juror could find that Ms. Flores-Banda did not know, or should not
have known, the wrongful act and resulting injury when Dr. Maislos expressed his plan to
remove the Obtryx in March 2006. In fact, as Ms. Flores-Banda argues, Dr. Maislos diagnosed
the cause of Ms. Flores-Banda’s symptoms as a failed “AP repair with TOT sling,” which could
lead a reasonable juror to conclude that, at the time, it was Ms. Flores-Banda’s belief that failed
anterior prolapse repair—and not necessarily the device itself—contributed to her injuries. (Dr.
Steven Maislos’s Notes Dated Mar. 8, 2006 [Docket 54-6], at 1–2). Moreover, Dr. Maislos plans
to testify as an expert for BSC in a related matter and has opined that injuries akin to those
experienced by Ms. Flores-Banda are not “indicative of a defect in the sling.” (Expert
Designation of Dr. Steven Maislos Dated Nov. 10, 2014 [Docket 54-7], at 8). Also, Ms. FloresBanda testified that neither Dr. Maislos nor any other medical professional ever discussed any
association between the Obtryx and her complications. (Flores-Banda Dep. [Docket 54-2], at
244:17-245:10). At a minimum, following her consultation with Dr. Maislos, a reasonable juror
could find that Ms. Flores-Banda was not aware, and should not have been aware, of the
wrongful act and resulting injury.
In the end, this determination is a fact question left to the jury. See Childs, 974 S.W.2d at
44 (“Inquiries involving the discovery rule usually entail questions for the trier of fact.”). On this
reasoning, and bearing in mind my duty to draw all legitimate inferences in favor of the
nonmovant, I DENY BSC’s Motion with respect to Ms. Flores-Banda’s non-warranty claims.

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B. Breach of Warranty Claims
Under Texas law, actions for breach of implied and express warranty are governed by a
four year statute of limitations. Tex. Bus. & Com. Code Ann. § 2.725. Critically, for warranty
claims, accrual begins at the time of delivery—not the time of discovery. Omni USA, Inc. v.
Parker-Hannifin Corp., 964 F. Supp. 2d 805, 815 (S.D. Tex. 2013) (“The statute of limitations
for breach of express warranty is four years, accruing from the date of delivery, regardless of
whether the plaintiff lack knowledge of the breach . . . .”). Here, the Obtryx was implanted in,
and thus delivered to, Ms. Flores-Banda on December 12, 2005. Therefore, the statute of
limitations for any breach of warranty claim expired on December 12, 2009. Because the
plaintiff did not file her complaint until March 6, 2013, her breach of warranty claims are barred
by the statute of limitations. Accordingly, her claims for express and implied breach of warranty
are DISMISSED, and BSC’s Motion on these claims is GRANTED.
IV.

Conclusion

As explained above, the defendant’s Motion is GRANTED in part and DENIED in
part. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.

ENTER: March 12, 2015

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