Rodenkirch v. C. R. Bard, Inc. et al
Filing
199
MEMORANDUM OPINION AND ORDER (Defendant's Motion for Summary Judgment) The 44 MOTION by C. R. Bard, Inc. for Partial Summary Judgment Against Katie Rodenkirch-Kleindl is GRANTED IN PART with respect to the plaintiffs' claims for manufactu ring defect, breach of implied warranty, breach of express warranty, and negligent inspection, packaging, marketing, and selling, and DENIED IN PART with respect to the plaintiffs' strict liability and negligent failure to warn claims, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 12/6/2016. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
KATIE RODENKIRCH-KLEINDL, et al.,
Plaintiffs,
v.
Civil Action No. 2:13-cv-26026
C. R. BARD, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
(Defendant’s Motion for Summary Judgment)
Pending before the court is defendant C. R. Bard’s (“Bard”) Motion for Partial
Summary Judgment [ECF No. 44]. As set forth below, Bard’s Motion for Summary
Judgment is GRANTED IN PART with respect to the plaintiffs’ claims for
manufacturing defect, breach of implied warranty, breach of express warranty, and
negligent inspection, packaging, marketing, and selling. Bard’s Motion for Summary
Judgment is DENIED IN PART with respect to the plaintiffs’ strict liability and
negligent failure to warn claims.
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 8,000 of
which are in the Bard MDL, MDL 2187. 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 and summary judgment motions, 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 (“PTO”) # 102, No. 2:12-md-2187 [ECF No.
729]. This selection process was completed twice, creating two waves of 100 cases,
Wave 1 and Wave 2. Ms. Rodenkirch-Kleindl’s case was selected as a Wave 1 case by
the plaintiffs. PTO # 118, No. 2:12-md-2187 [ECF No. 841].
Ms. Rodenkirch-Kleindl was surgically implanted with the Align Urethral
Support System (the “Align”) by Dr. Kenneth Ostermann at the Beaver Dam
Community Hospital in Beaver Dam, Wisconsin. Am. Short Form Compl. 4 [ECF No.
28]. As a result of complications allegedly caused by the Align, the plaintiffs bring the
following claims against Bard: strict liability for design defect, manufacturing defect,
and failure to warn; negligence; breaches of express and implied warranties; loss of
consortium; and punitive damages1. Id. at 5. In the instant motion, Bard moves for
partial summary judgment on the grounds that the plaintiffs’ claims are without
evidentiary support. Bard’s Mem. Supp. Mot. Summ. J. 1 (“Mem. in Supp.”) [ECF No.
45].
Bard also filed a Motion for Partial Summary Judgment on Punitive Damages Claims [ECF No. 46].
That motion is addressed in a separate order.
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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 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
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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 such as this. The choice of law for these pretrial motions depends on
whether they involve 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). In cases based on
diversity jurisdiction, the choice-of-law rules to be used are those of the states where
the actions were originally filed. 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 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.
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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. Rodenkirch-Kleindl received the implantation
surgery for the Align in Wisconsin. Thus, the choice-of-law principles of Wisconsin
guide this court’s choice-of-law analysis.
I find that these principles compel application of Wisconsin law. For tort
claims, Wisconsin’s choice of law methodology “begins with a presumption that the
law of the forum applies unless ‘nonforum contacts are of the greater significance.’”
Assembly Component Sys., Inc. v. Platinum Equity, L.L.C., No. 09-CV-778, 2010 WL
2719978, at *6 (E.D. Wis. July 7, 2010) (quoting Glaeske v. Shaw, 661 N.W.2d 420,
427 (Wis. App. 2003)). The methodology then “ends with an analysis of five ‘choice
influencing factors’: predictability of results, maintenance of interstate and
international order, simplification of the judicial task, advancement of the forum’s
governmental interests, and application of the better rule of law.” Id. Here, given the
presumption in favor of the law of the forum, and that there is no indication that any
of the five factors would weigh against applying Wisconsin law, I find that the tort
claims are governed by Wisconsin law.
III.
Analysis
Bard argues that it is entitled to partial summary judgment because the
plaintiffs lack evidentiary support on the following claims: failure to warn on both
theories of negligence and strict liability, breach of express warranty, manufacturing
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defect on both theories of negligence and strict liability, breach of implied warranty,
and negligent inspection, marketing, packaging and selling. The plaintiffs have
agreed not to pursue claims for manufacturing defect, breach of express warranty,
and breach of implied warranty. See Response 11 [ECF No. 109]. Accordingly, Bard’s
Motion on the plaintiffs’ claims for manufacturing defect, under theories of strict
liability and negligence, breach of express warranty, and breach of implied warranty
are GRANTED. Below, I apply the summary judgment standard to each remaining
claim.
A. Failure to Warn
Under Wisconsin law, a manufacturer is strictly liable for design defect if the
claimant establishes all of the following by a preponderance of the evidence:
(a) That the product is defective because it contains a manufacturing
defect, is defective in design, or is defective because of inadequate
instructions or warnings. . . . [;] (b) [t]hat the defective condition
rendered the product unreasonably dangerous to persons or property[;]
(c) [t]hat the defective condition existed at the time the product left the
control of the manufacturer[;] (d) [t]hat the product reached the user or
consumer without substantial change in the condition in which it was
sold[; and] (e) [t]hat the defective condition was a cause of the claimant’s
damages.
Wis. Stat. § 895.047.
A product is defective for want of adequate instructions or warnings “only if
the foreseeable risks of harm posed by the product could have been reduced or avoided
by the provision of reasonable instructions or warnings by the manufacturer and the
omission of the instructions or warnings renders the product not reasonably safe.”
Wis. Stat. § 895.047(1)(a). A plaintiff suing in strict liability must also prove that the
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inadequate instructions or warnings were “a cause” of the plaintiff’s damages. §
895.047(1)(e).
Bard asks the court to employ the learned intermediary doctrine in considering
the plaintiffs’ failure to warn claims. The learned intermediary doctrine allows a
manufacturer “to fulfill its duty to warn about the known dangers arising from use of
its products and avoid liability for failure to warn by adequately warning the
physician,” thus relieving manufacturers of prescription drugs and medical devices
of the duty to warn the patients directly about the product’s dangerous propensities.
Forst v. SmithKline Beecham Corp., 602 F. Supp. 2d 960, 968 (E.D. Wis. 2009). If the
court applied the learned intermediary doctrine in this case, as Bard urges me to do,
Bard’s liability on this claim would depend on whether it adequately warned the
implanting physician about the risks associated with the Align product. Whether it
directly warned the plaintiff would not matter.
The Wisconsin Supreme Court has not had the opportunity to decide whether
to adopt the learned intermediary rule, see Forst, 602 F. Supp. 2d at 968, and federal
courts applying Wisconsin law are split on the issue. Several federal courts have used
the rule without mentioning that the state supreme court has not yet expressly
adopted it. See, e.g., Menges v. Depuy Motech, Inc., 61 F. Supp. 2d 817, 830 (N.D. Ind.
1999) (applying Wisconsin law); Lukaszewicz v. Ortho Pharm. Corp., 510 F. Supp.
961, 963, amended, 532 F. Supp. 211 (E.D. Wis. 1981) (recognizing that the learned
intermediary rule is a “general rule [of] the courts of this country”). More recent
decisions by federal courts, however, reach the opposite conclusion and decline to
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apply the learned intermediary doctrine under Wisconsin law. See Maynard v. Abbott
Labs., No. 12-C-0939, 2013 WL 695817, at *5 (E.D. Wis. Feb. 26, 2013) (“Wisconsin
does not apply the learned intermediary doctrine . . . .”); Forst, 602 F. Supp. 2d at 968
(declining to adopt the learned intermediary rule “without some indication that the
state’s highest court would apply the doctrine if given the opportunity to do so”
(quotation marks omitted)); Peters v. AstraZeneca, LP, 417 F. Supp. 2d 1051, 1054
(W.D. Wis. 2006) (same).
I need not resolve this issue here. Regardless of whether Bard’s duty to warn
extended to the implanting physician or to the plaintiffs directly, the plaintiffs have
presented evidence demonstrating genuine disputes of material fact with regard to
whether an inadequate warning caused her injuries, as is required for both negligent
and strict liability failure to warn claims under Wisconsin products liability law. See
Wis. Stat. § 895.047(1)(e) (requiring a plaintiff to prove that “the defective condition
was a cause” of her injuries). Likewise, genuine disputes of material fact exist with
regard to whether Bard’s warning was adequate. Therefore, Bard’s Motion for
Summary Judgment on the plaintiffs’ strict liability and negligent failure to warn
claims is DENIED.
B. Negligence
Under Wisconsin law, a negligence action requires the proof of four elements:
“(1) A duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal
connection between the conduct and the injury; and (4) an actual loss or damage as a
result of the injury.” Rockweit v. Senecal, 541 N.W.2d 742, 747 (Wis. 1995). “The duty
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of any person is the obligation of due care to refrain from any act which will cause
foreseeable harm to others even though the nature of that harm and the identity of
the harmed person or harmed interest is unknown at the time of the act.” Id. After it
is shown that a duty of care was owed, “the plaintiff is simply required to prove that
the defendant failed to exercise ordinary care and the act or omission complained of
was the cause, in the legal sense, of the plaintiff’s injury.” Greiten v. LaDow, 235
N.W.2d 677, 685 (Wis. 1975).
Bard contends that the plaintiffs’ claims for negligent inspection, packaging,
marketing, and selling of the Align fail for lack of evidence. The plaintiffs, in response,
argue that there is ample evidence that demonstrate Bard breached a duty to the
plaintiffs and that there was resulting harm from this breach. The plaintiffs state
that Bard was negligent in failing to include adequate warnings, failing to include
appropriate instructions for use, exaggerating the benefits of the Align, and
marketing and selling the Align without adequate testing. However, apart from
reciting allegations that form the plaintiff ’s failure to warn and design defect claims,
the plaintiffs do not offer any support that Bard breached a legal duty that caused
the plaintiff ’s injuries in their “inspection, marketing, labeling, packaging, or selling”
of the Align. Accordingly, Bard’s Motion on these points is GRANTED.
IV. Conclusion
For the reasons discussed above, it is ORDERED that Bard’s Motion [ECF No.
44] is GRANTED IN PART with respect to the plaintiffs’ claims for negligent
inspection, packaging, marketing, and selling, manufacturing defect, breach of
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implied warranty, and breach of express warranty. Bard’s Motion is DENIED IN
PART with respect to the plaintiffs’ strict liability and negligent failure to warn
claims.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: December 6, 2016
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