Eghnayem v. Boston Scientific Corporation
Filing
232
MEMORANDUM OPINION AND ORDER (Defendant's Motion for Partial Summary Judgment on Plaintiffs' Punitive Damages Claims and Ms. Eghnayem's Motion for Leave to Amend Complaint) denying 106 MOTION by Boston Scientific Corporation for Partial Summary Judgment on Plaintiffs' Punitive Damages Claims and 126 MOTION by Amal Eghnayem for Leave to Amend 1 Short Form Complaint. Signed by Judge Joseph R. Goodwin on 10/21/2014. (cc: attys; any unrepresented party) (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
AMAL EGHNAYEM, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 2:13-cv-07965
BOSTON SCIENTIFIC CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
(Defendant’s Motion for Partial Summary Judgment on Plaintiffs’ Punitive Damages
Claims and Ms. Eghnayem’s Motion for Leave to Amend Complaint)
Pending before the court are Boston Scientific Corporation’s (“BSC”) Motion for Partial
Summary Judgment on Plaintiffs’ Punitive Damages Claims [Docket 106] (“Def.’s Mot.”)1 and
plaintiff Amal Eghnayem’s Motion for Leave to Amend the Complaint [Docket 126]
(“Eghnayem’s Mot. to Amend”). For the reasons below, I FIND that Florida substantive law, not
Massachusetts law, applies to the plaintiffs’ punitive damages claims. I also conclude that BSC
has failed to carry its initial burden of showing the absence of any genuine issue of material fact
with respect to punitive damages. Accordingly, I DENY BSC’s Motion for Partial Summary
Judgment on Plaintiffs’ Punitive Damages Claims. Because I conclude Florida punitive damages
law applies here and Ms. Eghnayem concedes her motion is moot if this is so, I DENY plaintiff
Amal Eghnayem’s Motion for Leave to Amend the Complaint.
1
All plaintiffs to whom this motion relates, including Amal Eghnayem, are Florida residents and were implanted
with the Pinnacle Pelvic Floor Repair Kit device (“Pinnacle”) in Florida. (See BSC’s Mem. of Law in Supp. of Mot.
for Partial Summ. J. on Pls.’ Pun. Dam. Claims [Docket 107] (“Def.’s Mem.”) ¶¶ 4–17; e.g., Eghnayem Short Form
Compl. [Docket 1] ¶¶ 4, 8, 11).
I.
Background
Plaintiffs’ cases are four of more than 60,000 assigned to me by the Judicial Panel on
Multidistrict Litigation in seven different MDLs against various manufacturers.2 Of the more
than 60,000 cases, over 13,000 reside in the Boston Scientific MDL. These cases involve the use
of transvaginal surgical mesh to treat pelvic organ prolapse and stress urinary incontinence. In
this particular case, plaintiffs, including Ms. Eghnayem, were implanted with a product
manufactured by defendant Boston Scientific Corporation: the Pinnacle Pelvic Floor Repair Kit
(“Pinnacle”). The plaintiffs allege that as a result of implantation with this product they
experienced several complications. The plaintiffs currently advance the following claims:
negligence, strict liability (defective design, manufacturing defect, and failure to warn), breach of
express and implied warranties, fraudulent concealment, and punitive damages. (See, e.g.,
Eghnayem Short Form Compl. ¶ 13).
On July 18, 2014, BSC moved for partial summary judgment on the plaintiffs’ punitive
damages claims and filed a memorandum in support. (See generally Def.’s Mot.; Def.’s Mem.).
On July 23, 2014, Ms. Eghnayem moved the court for leave to amend her complaint so she could
add a claim for damages (including punitive) under Massachusetts law. (See generally
Eghnayem’s Mot. to Amend). On August 22, 2014, the plaintiffs filed their Response in
Opposition to BSC’s Motion for Partial Summary Judgment on Plaintiffs’ Punitive Damages
Claims [Docket 176] (“Pls.’ Resp.”). BSC filed its Reply in Support of Its Motion [Docket 181]
(“Def.’s Reply”) on August 27, 2014.
In September 2014 the court requested supplemental briefing on choice-of-law issues
pertaining to both motions. The plaintiffs filed their Supplemental Brief in Support of Plaintiffs’
2
By Pretrial Order # 91, dated April 11, 2014, I originally consolidated five cases for trial. Of the original five, four
remain pending. (See Pretrial Order # 91 [Docket 10]).
2
Motion for Leave to Amend Complaint [Docket 198] (“Pls.’ Supp. Br.”) on September 22, 2014
and BSC filed its Reply [Docket 208] (“Def.’s Reply to Pls.’ Supp. Br.”) on September 26, 2014.
Having reviewed the briefs and arguments of the parties, I address the defendant’s motion first.
II.
Legal Standard
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
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., 477 U.S. at 322–23. 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. Commc’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), abrogated on
other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
3
III.
Discussion
Here, the plaintiffs are Florida residents who were implanted with the Pinnacle in Florida
but filed their complaints directly into the MDL. “For cases that originate elsewhere and are
directly filed into the MDL, I will follow the better-reasoned authority that applies the choice-oflaw rules of the originating jurisdiction, which in our case is the state in which the plaintiff was
implanted with the product.” Sanchez v. Boston Scientific Corp., 2:12-CV-05762, 2014 WL
202787, at *4 (S.D. W. Va. Jan. 17, 2014). Florida is the originating jurisdiction and neither the
plaintiffs nor the defendant disputes that the court must consult Florida’s choice-of-law
principles to determine the substantive law applicable to the plaintiffs’ punitive damages claims.
(See Def.’s Mem. at 5; Pls.’ Resp. at 4). The defendant contends that Florida’s choice-of-law
principles dictate application of Massachusetts law. (See Def.’s Mem. at 8–10). By contrast, the
plaintiffs maintain that Florida law controls this issue.3 (See Pls.’ Resp. at 9–16).4 For the reasons
below, I FIND that Florida substantive law applies to the plaintiffs’ punitive damages claims.
A. Florida Follows the Significant-Relationship Test for Torts
In Bishop v. Florida Specialty Paint Co., the Florida Supreme Court announced a new
approach for choice-of-law questions concerning tort:
3
The defendant relies on In re Ethicon [Lewis v. Ethicon, Inc. et al.], but the plaintiffs in that case never “assert[ed]
that the law of any other state applie[d] to their punitive damages claim.” No. 2:12-cv-4301, 2014 WL 186869, at *9
(S.D. W. Va. Jan. 15, 2014), rev’d on other grounds No. 2:12-cv-4301, 2014 WL 457551 (S.D. W. Va. Feb. 3,
2014). In fact, their brief opposing Ethicon’s motion was titled: “Plaintiffs’ Combined Response and Memorandum
of Law in Opposition to Defendants’ Motion for Summary Judgment on Punitive Damages Under New Jersey Law.”
[Docket 181] at 1, In re Ethicon, 2:12-cv-4301, 2014 WL 186869, (S.D. W. Va. Jan. 15, 2014) (emphasis added),
rev’d on other grounds No. 2:12-cv-4301, 2014 WL 457551 (S.D. W. Va. Feb. 3, 2014); see also In re Ethicon,
2014 WL 186869, at *9 (“Although the plaintiffs expressly claim that they do not concede that New Jersey’s law
applies, they appear to assume that it does. . . .” (internal quotation marks and citation omitted)). The laws
implicated were those of Texas and New Jersey. Id. at 9–10. The punitive damages inquiry centered on whether “the
FDA ha[d] endorsed and recognized the safety and effectiveness of the TVT [product] in its 510(k) clearance” for
purposes of N.J. Stat. Ann. § 2A:58C-5. Id.at 10. In other words, the circumstances concerning the alleged conduct
giving rise to punitive damages in In re Ethicon are factually distinct from those here. Accordingly, I am not bound
by the prior analysis, and both parties assumed the application of New Jersey law.
4
I also note that because subject matter jurisdiction rests on diversity grounds, “[f]ederal law . . . controls procedural
issues and state law controls substantive issues.” Sanchez v. Boston Scientific Corp., 2:12-CV-05762, 2014 WL
202787, at *3 (S.D. W. Va. Jan. 17, 2014) (citing Dixon v. Edwards, 290 F.2d 690, 710 (4th Cir. 2002)).
4
Instead of clinging to the traditional lex loci delicti rule, we now adopt the
‘significant relationship[] test’ as set forth in the Restatement (Second) of Conflict
of Laws §§ 145–146 (1971):
§ 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in tort are
determined by the local law of the state which, with respect to that issue, has
the most significant relationship to the occurrence and the parties under the
principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to
determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of
business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with
respect to the particular issue.
§ 146. Personal Injuries
In an action for a personal injury, the local law of the state where the injury
occurred determines the rights and liabilities of the parties, unless, with
respect to the particular issue, some other state has a more significant
relationship under the principles stated in § 6 to the occurrence and the
parties, in which event the local law of the other state will be applied.
389 So.2d 999, 1001 (Fla. 1980) (quoting Restatement (Second) of Conflict of Laws §§ 145–146
(1971)). The Bishop court noted additionally that:
Section 6 of the Restatement (Second) lists the following factors as important
choice of law considerations in all areas of law:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests
of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Id. at 1001 n.1 (quoting Restatement (Second) of Conflict of Laws § 6(1971)); see also State
Farm Mut. Auto. Ins. Co. v. Olsen, 406 So. 2d 1109, 1110–11 (Fla. 1981) (referencing Bishop
and listing the factors from the Restatement). Florida courts have continued to adhere to the
5
significant-relationship test set forth in Bishop.5 E.g., Rosado v. DaimlerChrysler Fin. Servs.
Trust, 1 So. 3d 1200, 1203 (Fla. Dist. Ct. App. 2009); Connell v. Riggins, 944 So. 2d 1174, 1176
(Fla. Dist. Ct. App. 2006).
In adopting this test, the Bishop court reiterated the language set forth in § 146 of the
Restatement, noting that “[t]he state where the injury occurred would, under most circumstances,
be the decisive consideration in determining the applicable choice of law.” 389 So. 2d at 1001.
Here, I am bound to apply Florida law to the issue of punitive damages “‘unless, with respect to
[that] particular issue, some other state has a more significant relationship.’” Id. (emphasis
omitted) (quoting Restatement (Second) of Conflict of Laws § 146 (1971)). Because the facts
also implicate the Commonwealth of Massachusetts, I must determine whether Massachusetts
has a more significant relationship to the issue of punitive damages than Florida in this case.
B. Massachusetts Does Not Have a More Significant Relationship to the Issue of
Punitive Damages Than Florida
Below I have applied the significant-relationship test under Florida’s choice-of-law rules
by considering the § 145 and § 6 factors listed above. I have considered the § 145 factors when
analyzing the § 6 factors.
1. Section 145 Factors
The § 145 factors favor applying Florida law. The plaintiffs suffered their alleged injuries
in Florida. BSC’s management team for the Urology and Women’s Health division is located in
Massachusetts and BSC maintains that “the conduct allegedly giving rise to the punitive
5
At least one Florida lower court has suggested that a preliminary “false conflict” analysis may be employed before
conducting the entire significant-relationship test. E.g., Tune v. Philip Morris Inc., 766 So.2d 350, 352 (Fla. Dist. Ct.
App. 2000) (“Although the Restatement does not expressly discuss ‘false conflicts,’ its contributors and subsequent
scholars have recognized that a comprehensive conflict-of-laws analysis should not be required when only one state
has a legitimate interest in the law to be applied.”). The Florida Supreme Court has not approved this modification,
so I conduct a fuller significant-relationship analysis.
6
damages claims occurred in Massachusetts.” (See Def.’s Mem. ¶ 3, at 7). But BSC sells its
products in many states across the country. In particular, the plaintiffs contend the defendant
“direct[s] products and support materials through Florida’s stream of commerce to residents and
businesses.” (See Pls.’ Resp. at 9). The plaintiffs were implanted with BSC products, specifically
Pinnacle devices, in Florida. BSC is incorporated under the laws of Delaware and its principal
place of business is in Massachusetts. (See Def.’s Mem. ¶ 1). The plaintiffs are all Florida
residents. As it concerns the issue of punitive damages, the relationship between the parties is not
centered in Massachusetts. Instead, it is centered in Florida, where BSC distributes products, the
plaintiffs reside, the plaintiffs were implanted with BSC products, and the plaintiffs allegedly
suffered injury.
2. Section 6 Factors
The applicable § 6 factors do not suggest that Massachusetts has a more significant
relationship than Florida. The relevant policies of the forum, Florida for these purposes, weigh in
favor of applying Florida punitive damages law. “Under Florida law, the purpose of punitive
damages is . . . to punish the defendant for its wrongful conduct and to deter similar misconduct
by it and other actors in the future.” Owens–Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483,
486 (Fla. 1999); see also W.R. Grace & Co.–Conn. v. Waters, 638 So. 2d 502, 504 (Fla. 1994)
(“Punishment and deterrence are the policies underlying punitive damages.”); St. Regis Paper
Co. v. Watson, 428 So. 2d 243, 247 (Fla. 1983) (same).
Massachusetts’s relevant policies on punitive damages and its relative interest in applying
those policies here do not weigh in favor of applying Massachusetts law. This court’s reasoning
in Sanchez v. Boston Scientific Corp. is instructive:
Massachusetts has no legitimate interest in applying its prohibition on punitive
damages to injuries occurring outside of Massachusetts. BSC contends that
7
Massachusetts has an interest in protecting its citizens from excessive financial
liability. BSC is a Delaware Corporation with its principle place of business in
Massachusetts. . . . BSC points to no Massachusetts legal authority supporting its
proposition that Massachusetts has an interest in protecting its citizens from
excessive liability, let alone liability for wrongs occurring outside of
Massachusetts. Likewise, I am unable to locate any Massachusetts cases
articulating the state’s interest in prohibiting punitive damages at common
law. . . . Even assuming Massachusetts’s punitive damages prohibition is based on
a policy of shielding its residents from excessive liability, Massachusetts has no
legitimate interest in enforcing this policy outside of its borders.
No. 2:12-cv-05762, 2014 WL 4059214, at *10 (S.D. W. Va. Aug. 18, 2014) (citations omitted).
Massachusetts has no interest, and certainly not a relatively stronger interest than Florida, in
applying its punitive damages law here.
Additionally, I do not find that the ease in the determination and application of the law to
be applied cuts strongly in favor of either Florida or Massachusetts law. The nature of an MDL
docket frequently requires determination and application of many different states’ laws.
3. Conclusion
Under Florida’s choice-of-law principles for tort, the law of the place of injury governs
the rights and liabilities of the parties unless another state has a more significant relationship
with respect to a particular issue. The plaintiffs here, Florida residents, were implanted with
Pinnacle devices in Florida and allegedly suffered injury in Florida. The location of alleged
injury is not fortuitous. BSC has its headquarters in Massachusetts and conducts operations
related to pelvic mesh products in that state, but BSC also directs its products to the Florida
market. Plainly, the State of Florida has a weighty interest in punishing tortfeasors who direct
products to the Florida market that injure Floridians. Massachusetts, meanwhile, has no
legitimate interest, and certainly not a relatively stronger interest, in prohibiting punitive
damages outside its borders. For these reasons and the others above, I FIND that Massachusetts
does not have a more significant relationship to the issue of punitive damages than Florida in this
8
case, and I FIND that Florida substantive law on punitive damages applies.
C. BSC’s Motion for Partial Summary Judgment on Plaintiffs’ Punitive Damages
Claims
Having found that Florida substantive law applies to the plaintiffs’ punitive damages
claims, I now examine BSC’s Motion. On summary judgment, the movant always bears the
initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (“Regardless of
whether he may ultimately be responsible for proof and persuasion, the party seeking summary
judgment bears an initial burden of demonstrating the absence of a genuine issue of material
fact.”(citing Celotex Corp., 477 U.S. at 323)). This is not a high hurdle as “the burden on the
moving party may be discharged by ‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp., 477 U.S.
at 325. Nonetheless, the movant must clear it. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1116 (11th Cir. 1993) (“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if any, showing the
non-movant has made.” (citing Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991)).
Throughout its briefing, BSC focuses almost exclusively on the legal argument that
Massachusetts punitive damages law applies and that its application precludes recovery of
punitive damages here, entitling BSC to summary judgment. (See Def.’s Mem. at 2, 5–9; Def.’s
9
Reply at 1; Def.’s Reply to Pls.’ Supp. Br. at 1–13). After culling BSC’s legal arguments from
the briefs, rejecting them, see supra, and setting them aside, the court is left with facts but
without any showing by BSC that there is an absence of a genuine issue of material fact with
regard to punitive damages. Nowhere does BSC articulate that the plaintiffs’ claims fail even if
punitive damages are available under either Massachusetts or Florida law. For their part, the
plaintiffs remark that “BSC omits a challenge to Plaintiffs’ ability to show a genuine issue of fact
on punitive damages.” (See Pls.’ Resp. at 1).
Because I have found that Florida punitive damages law applies and BSC has neither
shown nor pointed to the absence of a genuine issue of material fact, it has failed to discharge its
initial burden. For these reasons, I DENY BSC’s Motion for Partial Summary Judgment on
Plaintiffs’ Punitive Damages Claims.
D. Ms. Eghnayem’s Motion for Leave to Amend the Complaint
I now turn to Ms. Eghnayem’s Motion for Leave to Amend the Complaint. She makes
clear in supplemental briefing that “[t]he need to amend Plaintiffs’ complaints would be rendered
moot if the Court denies BSC’s [motion on punitive damages].” (Pls.’ Suppl. Br. at 1). She
acknowledges
that
should
“the
Court
conclude[]
that
Florida . . . punitive
law
applies, . . . Plaintiffs’ need to pursue their claims under Massachusetts law would be rendered
moot.” (Id. at 2). Having concluded that Florida punitive damages law applies here, I DENY Ms.
Eghnayem’s motion as moot.
IV.
Conclusion
For the reasons explained above, Boston Scientific Corporation’s Motion for Partial
Summary Judgment on Plaintiffs’ Punitive Damages Claims [Docket 106] is DENIED and the
Ms. Eghnayem’s Motion for Leave to Amend the Complaint [Docket 126] is DENIED.
10
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER: October 21, 2014
11
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