Stephenson v. C. R. Bard, Inc.

Filing 41

MEMORANDUM OPINION AND ORDER (Defendant's Motion for Summary Judgment) The 13 MOTION by C. R. Bard, Inc. for Partial Summary Judgment is DENIED as moot and the 15 AMENDED MOTION by C. R. Bard, Inc. for Summary Judgment is GRANTED in part and DENIED in part; Bard's Amended Motion for Summary Judgment is GRANTED with respect to Count I (Negligence); Count II (Strict Liability Design Defect); Count III (Strict Liability - Manufacturing Defect); Count IV (Strict Liability - Failure to Warn); Count V (Breach of Express Warranty); and Count VIII (Punitive Damages), and these claims are DISMISSED with prejudice. Bards Amended Motion is DENIED with respect to Count VI (Breach of Implied Warranty). It is further ORDERED that Bard's Motion for Partial Summary Judgment is DENIED as moot. Signed by Judge Joseph R. Goodwin on 1/31/2018. (cc: counsel of record; any unrepresented party) (mek)

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

CIVIL ACTION NO. 2:16–cv–11819

C. R. BARD, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
(Defendant’s Motion for Summary Judgment)
Pending before the court are the Motion for Partial Summary Judgment [ECF
No. 13] and the Amended Motion for Summary Judgment [ECF No. 15] filed by
defendant C. R. Bard, Inc. (“Bard”). The plaintiff has responded [ECF No. 19], and
Bard has replied [ECF No. 20]. Thus, the Motions are ripe for adjudication. As set
forth below, the Motion [ECF No. 13] is DENIED as moot and the Amended Motion
[ECF No. 15] is GRANTED in part and DENIED in part.
I.

Background
This action involves a Michigan plaintiff who was implanted with the Align

Urethral Support System, a mesh product manufactured by Bard, on February 15,
2010 in Petoskey, Michigan. Short Form Compl. [ECF No. 1] ¶¶ 1–12. This case
resides in one of seven MDLs assigned to me by the Judicial Panel on Multidistrict
Litigation (“MDL”) 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 24,000 cases currently pending, approximately 3000 of which are
in the C. R. Bard, Inc. MDL, MDL No. 2187.
In an effort to manage the massive Bard MDL efficiently and effectively, the
court decided to conduct pretrial discovery and motions practice on an individualized
basis. To this end, I ordered the plaintiffs and defendants to submit a joint list of
remaining cases in the Bard MDL, MDL 2187, with claims against Bard and other
defendants where counsel has at least 20 cases in the Bard MDL. The list included
nearly 3,000 cases. From these cases, I selected 332 cases to become part of a “wave”
of cases to be prepared for trial and, if necessary, remanded. See Pretrial Order No.
244, In re C. R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., No. 2:10–md–02187,
Mar. 3, 2017, https://www.wvsd.uscourts.gov/MDL/2187/orders.html. Upon the
creation of a wave, a docket control order subjects each active case in the wave to the
same scheduling deadlines, rules regarding motion practice, and limitations on
discovery. I selected the instant civil action as a Wave 5 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

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favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587–88 (1986).
The “party seeking summary judgment 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).
To discharge this burden, the moving party may produce an affidavit to demonstrate
the absence of a genuine issue of material fact. See id. The moving party, however, is
not required to do so and may discharge this burden “by ‘showing’—that
is, pointing out to the district court—that there is an absence of evidence to support
the nonmoving party's case.” Id. at 325; see also Pumphrey v. C.R. Bard, Inc., 906 F.
Supp. 334, 336 (N.D. W. Va. 1995). If the moving party sufficiently points out to the
court those portions of the record that show that there is an absence of evidence to
support the nonmoving party’s case, the burden shifts to the nonmoving party to come
forward with record evidence establishing a genuine issue of material fact. Pollard v.

United States, 166 F. App'x 674, 678 (4th Cir. 2006) (citing Celotex, Corp., 477 U.S.
at 325).
Should the burden shift, the nonmoving party 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. 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. Id.

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at 252. Likewise, conclusory allegations or unsupported speculations, 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). Summary judgment is therefore appropriate when, after
adequate time for discovery, the moving party first discharges the initial burden and
then the nonmoving party does not make a showing sufficient to establish a genuine
issue of material fact. Celotex Corp., 477 U.S. at 322–23.
B. Choice of Law
The parties agree that Michigan choice-of-law principles apply to this case and
that these principles compel the application of Michigan substantive law to the
plaintiff’s claims.
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) (citations omitted). If a plaintiff files her claim directly into the
MDL in the Southern District of West Virginia, as the plaintiff did in this case, the
court consults the choice-of-law rules of the state where the plaintiff was implanted
with the product. See Sanchez v. Bos. Sci. Corp., 2:12–cv–05762, 2014 WL 202787, at
4

*4 (S.D. W. Va. Jan. 17, 2014) (“For cases that originate elsewhere and are directly
filed into the MDL, the court 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.”). In this case, the implantation
surgery took place in Michigan. Thus, Michigan’s choice-of-law principles guide the
court’s choice-of-law analysis.
Michigan’s choice-of-law analysis begins with the presumption that Michigan
law applies “unless a ‘rational reason’ to do otherwise exists.” Sutherland v.

Kennington Truck Serv., Ltd., 562 N.W.2d 466, 471 (Mich. 1997).

Id.

In determining whether a rational reason to displace
Michigan law exists, we undertake a two-step analysis.
First, we must determine if any foreign state has an
interest in having its law applied. If no state has such an
interest, the presumption that Michigan law will apply
cannot be overcome. If a foreign state does have an interest
in having its law applied, we must then determine if
Michigan’s interests mandate that Michigan law be
applied, despite the foreign interests.
Here, the plaintiff resides in Michigan, she was implanted with the product at

issue in Michigan, and her alleged injuries and follow-up care occurred in Michigan.
Accordingly, I FIND that no other state has an interest in having its law applied, and
I apply Michigan’s substantive law to this case.
III.

Analysis
Bard argues it is entitled to summary judgment on all of the plaintiff’s claims

because they are barred by the relevant statutes of limitations and because the
plaintiff is unable to establish causation, which is an essential element to all of her
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claims. Bard also argues it is entitled to summary judgment on the plaintiff’s strict
liability and punitive damages claims because they are not recognized under
Michigan law.
A. Conceded Claims
The plaintiff concedes the following claims: Count II (Strict Liability – Design
Defect); Count III (Strict Liability – Manufacturing Defect); Count IV (Strict Liability
– Failure to Warn); and Count V (Breach of Express Warranty). Accordingly, Bard’s
Amended Motion regarding these counts is GRANTED.
B. Statutes of Limitations
Bard contends that it is entitled to summary judgment on all of the plaintiff’s
claims because they are barred by the applicable statutes of limitations. Under
Michigan law, all products liability claims are subject to a three-year statute of
limitations. Mich. Comp. Laws § 600.5805(13). Although breach of warranty claims
are typically subject to a four-year statute of limitations, id. at § 440.2725(1), when
the breach is related to an underlying personal injury claim, the statute of limitations
governing personal injury claims applies instead. See Hertzler v. Manshum, 200 N.W.
155, 157 (Mich. 1924). Thus, a three-year statute of limitations governs all of Ms.
Stephenson’s claims.
The limitations period begins to run when the claim accrues. Mich. Comp.
Laws § 600.5827. “[T]he claim accrues at the time the wrong upon which the claim is
based was done regardless of the time when damage results.” Id. Most states apply a
“discovery rule” to the statutory limitations period, which postpones accrual until a

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plaintiff discovers, or through reasonable diligence should have discovered, his or her
injury and the causal connection between the plaintiff’s injury and the defendant’s
breach of duty. See Jones v. Trs. of Bethany Coll., 351 S.E.2d 183, 185 (W. Va. 1986)
(collecting cases). However, Michigan does not apply a discovery rule in products
liability actions unless one is expressly provided by statute. Trentadue v. Buckler

Automatic Lawn Sprinkler Co., 738 N.W.2d 664, 680 (Mich. 2007).
There is no statutory discovery rule for products liability claims sounding in
negligence. However, Michigan does have a statutory discovery rule for breach of
warranty claims. For these claims, “the claim accrues at the time the breach of the
warranty is discovered or reasonably should be discovered.” Mich. Comp. Laws §
600.5833. The Supreme Court of Michigan has interpreted this to mean “that a
plaintiff’s cause of action accrues when, on the basis of subjective facts, the plaintiff
should have known of an injury, even if a subjective belief regarding the injury occurs
at a later date.” Moll v. Abbott Labs., 506 N.W.2d 816, 825 (Mich. 1993). Specifically,
“[a] plaintiff’s cause of action accrues when he discovers or, through the exercise of
reasonable diligence, should have discovered that he has a possible cause of action,”
not when the plaintiff discovers or should have discovered the likely cause of his or
her injury. Id. at 826–27 (quoting Bonney v. Upjohn Co., 342 N.W.2d 551, 554 (Mich.
Ct. App. 1983)). In rejecting the “likely cause” standard in favor of the “possible cause”
standard, the Michigan Supreme Court explained, “Once a claimant is aware of an
injury and its possible cause, the plaintiff is aware of a possible cause of action. We
see no need to further protect the rights of the plaintiff to pursue a claim, because the

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plaintiff at this point is equipped with sufficient information to protect the claim.” Id.
at 828.
In this case, Ms. Stephenson was implanted with the allegedly defective mesh
product on February 15, 2010. Accordingly, her negligence claim accrued on that date.
Ms. Stephenson had until February 15, 2013 to file her negligence cause of action.
Ms. Stephenson filed her claim on December 7, 2016—almost four years after the
limitations period had run. Ms. Stephenson does not dispute that her negligence
claim is time barred under the three-year statute of limitations. Instead, she urges
the court to apply equitable tolling to her negligence claim because of her long history
with drug abuse.
The Sixth Circuit has “identified five factors to consider when determining the
appropriateness of equitably tolling a statute of limitations: 1) lack of notice of the
filing requirement; 2) lack of constructive knowledge of the filing requirement; 3)
diligence in pursuing one’s rights; 4) absence of prejudice to the defendant; and 5) the
plaintiff’s reasonableness [in]

remaining

ignorant

of the

particular legal

requirement.” Truitt v. Cty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998). However,
the Supreme Court of Michigan has made clear that equitable tolling “is limited to
those circumstances when the courts themselves have created confusion.” Trentadue

v. Buckler Lawn Sprinkler, 738 N.W.2d 664, 679 (Mich. 2007). Thus, in order for
equitable tolling to apply, the plaintiff must demonstrate that she has “detrimentally
relied on confusing, pre-existing case law.” Id.

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Here, Ms. Stephenson has not presented any evidence of detrimental reliance
on “confusing, pre-existing case law.” Therefore, I decline to apply equitable tolling to
the plaintiff’s negligence claim, and I FIND that the plaintiff’s negligence claim is
barred by the statute of limitations. Accordingly, Bard’s Amended Motion is
GRANTED with respect to Count I (Negligence).
Turning to the plaintiff’s breach of implied warranty claim, this claim accrued
when Ms. Stephenson discovered, or through the exercise of reasonable diligence
should have discovered, her injury and its possible cause. Moll, 506 N.W.2d at 826–
28. Bard argues that this occurred shortly after the plaintiff’s implant surgery in
February 2010, when the plaintiff first began experiencing dyspareunia and
incontinence. Ms. Stephenson argues that her warranty claim accrued in either 2014
or 2015, after her mother told her about an advertisement she had seen regarding
potential lawsuits for transvaginal mesh products.
After reviewing the evidence submitted by both parties, I FIND that a genuine
dispute of material fact exists regarding when the plaintiff, through the exercise of
reasonable diligence, should have discovered that her injuries were possibly caused
by her synthetic mesh implant. Accordingly, Bard’s Amended Motion on this ground
is DENIED with respect to Count VI (Breach of Implied Warranty).
C. Causation
Bard argues that it is entitled to summary judgment on the plaintiff’s breach
of implied warranty claim because the plaintiff is unable to establish that any alleged
breach by Bard caused the plaintiff’s alleged injuries. Bard notes that the plaintiff

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has disclosed only one specific causation expert to testify in this case, Dr. William
Porter, and he testified during his deposition that he could not rule out certain other
conditions as potential causes of the plaintiff’s injuries. In response, the plaintiff
points to Dr. Porter’s export report, wherein he concluded “to a reasonable degree of
medical probability that [the Align mesh implant was] a cause of Ms. Stephenson’s
voiding dysfunction and urinary tract infections.” Pl.’s Mem. Opp’n to Bard’s Mot.
Partial Summ. J. Ex. 4, at 6 (“Porter Report”) [ECF No. 19-4].
Under Michigan law, “a warranty that the goods shall be merchantable is
implied in a contract for their sale if the seller is a merchant with respect to goods of
that kind.” Mich. Comp. Laws. § 440.2314. To establish a cause of action for breach
of implied warranty, “the plaintiff ‘must prove a defect attributable to the
manufacturer and causal connection between that defect and the injury or damage of
which he complains.’” Kenkel v. Stanley Works, 665 N.W.2d 490, 496 (Mich. Ct. App.
2003) (quoting Piercefield v. Remington Arms Co., 133 N.W.2d 129, 135 (Mich. 1965)).
“[A]s part of its prima facie case, a plaintiff must show that the manufacturer’s
negligence was the proximate cause of the plaintiff’s injuries.” Skinner v. Square D

Co., 516 N.W.2d 475, 479 (Mich. 1994). This “entails proof of two separate elements:
(1) cause in fact, and (2) legal cause, also known as ‘proximate cause.’” Id. “The cause
in fact element generally requires showing that ‘but for’ the defendant’s actions, the
plaintiff’s injury would not have occurred.” Id. “[T]he plaintiff is not required to
produce evidence that positively eliminates every other potential cause[,]” id. at 478,
but “must introduce evidence which affords a reasonable basis for the conclusion that

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it is more likely than not that the conduct of the defendant was a cause in fact of the
result.” Id. at 481 (quoting Mulholland v. DEC Int’l Corp., 443 N.W.2d 340, 350 n.18
(Mich. 1989)).
In this case, Dr. Porter concluded in his expert report that “it is my opinion to
a reasonable degree of medical probability that a cause of Ms. Stephenson’s voiding
dysfunction and urinary tract infections is her Align mesh due to the chronic
inflammation with polypropylene mesh.” Porter Report 6. His report also states that
“[i]n considering the cause of the voiding dysfunction and urinary tract infections
suffered by Ms. Stephenson, I concluded that her Align mesh was a cause of her
difficulties.” Id. In addition, Dr. Porter’s report states that he considered other
potential causes of the plaintiff’s injuries and “concluded that they could not be ruled
out as a source of her voiding dysfunction or urinary tract infections.” Id.
During his deposition, Dr. Porter explained in more detail why he did not
believe that these alternative causes were responsible for the plaintiff’s injuries, but
admitted that he could not rule them out completely.
Q. Is that still your opinion here today, that you cannot rule
out Ms. Stephenson’s other conditions, including pelvic
organ prolapse and atrophy, as potential causes of her
voiding dysfunction?
A. Right. So, I mean she—I don’t think—and that’s my
opinion. I can’t rule it out 100 percent, but I still believe
that her voiding dysfunction—and I still believe her UTIs
are related to her voiding dysfunction, and I don’t think it’s
due to the prolapse, because her prolapse is mild. And it
was severe enough that Dr. Danz would think that her
retention is due to the cystocele. I think she would offer
some sort of intervention, such as either, you know, pessary
or surgery again. So I don’t, really, think the prolapse is
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causing her retention or incomplete bladder emptying. So I
still believe it’s due to the sling.
And, now, going back how far this goes back, after
what we have documented in 2012, and I think maybe
that’s why she was having more bladder infections. But,
again, that’s my opinion, per se. But she does have a long
history of UTIs.
So can I rule out her prolapse? I can’t rule it out 100
percent, but I think the voiding dysfunction is more than
50 per—51 percent due to the obstructive sling procedure.
So I can’t rule it out 100 percent, but I believe the cause is
due to the sling.
Def.’s Am. Mot. Summ. J. Ex. E (Porter Dep.), at 561:7–562:9 [ECF No. 15-1].
As stated above, “the plaintiff is not required to produce evidence that
positively eliminates every other potential cause[,]” Skinner, 516 N.W.2d at 478, but
“must introduce evidence which affords a reasonable basis for the conclusion that it
is more likely than not that the conduct of the defendant was a cause in fact of the
result.” Id. at 481. Here, the plaintiff’s only specific causation expert, Dr. Porter,
stated that it is more likely than not that the plaintiff’s voiding dysfunction is “due
to the obstructive sling procedure.” Thus, viewing the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the plaintiff, I FIND that
a genuine dispute of material fact exists with regard to the causation element of the
plaintiff’s breach of implied warranty claim. Accordingly, Bard’s motion on this
ground is DENIED with respect to Count VI (Breach of Implied Warranty).
D. Punitive Damages
Finally, Bard contends that it is entitled to summary judgment on the
plaintiff’s claim for punitive damages because punitive damages are not available
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under Michigan law. Specifically, Bard argues that Michigan law does not allow for
the recovery of punitive damages unless expressly authorized by statute, and
Michigan’s products liability statute does not so authorize. See Mich. Comp. Laws §
600.2946a. The plaintiff does not dispute that Michigan law does not generally permit
the recovery of punitive damages. However, the plaintiff notes that Michigan allows
for the recovery of “exemplary” damages “as an element of compensatory damages.”

See Eide v. Keisey-Hayes Co., 427 N.W.2d 488, 498 (Mich. 1988). Therefore, the
plaintiff requests that, if any of her substantive claims survive, she should be entitled
to seek exemplary damages from Bard.
The parties are correct that Michigan law does not allow for the recovery of
punitive damages unless expressly authorized by statute. See Casey v. Auto Owners

Ins. Co., 729 N.W.2d 277, 286 (Mich. Ct. App. 2006). Furthermore, the parties are
also correct that Michigan’s products liability statute does not authorize the recovery
of punitive damages. See Mich. Comp. Laws § 600.2946a.
Nonetheless, the plaintiff attempts to recast her punitive damages claim as a
request for exemplary damages under Michigan law. But, as the plaintiff herself
notes, “[e]xemplary damages are compensatory in nature, not punitive, since they are
actually an element of actual damages.” Rinaldi v. Rinaldi, 333 N.W.2d 61, 63 (Mich.
Ct. App. 1983). Thus, the plaintiff’s punitive damages claim cannot survive on a
theory of exemplary damages because exemplary damages are, by definition, nonpunitive. Accordingly, Bard’s Motion as to Count XIII (Punitive Damages) is
GRANTED.

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IV.

Conclusion
For the reasons discussed above, it is ORDERED that Bard’s Amended Motion

for Summary Judgment [ECF No. 15] is GRANTED with respect to Count I
(Negligence); Count II (Strict Liability – Design Defect); Count III (Strict Liability –
Manufacturing Defect); Count IV (Strict Liability – Failure to Warn); Count V
(Breach of Express Warranty); and Count VIII (Punitive Damages), and these claims
are DISMISSED with prejudice. Bard’s Amended Motion is DENIED with respect to
Count VI (Breach of Implied Warranty). It is further ORDERED that Bard’s Motion
for Partial Summary Judgment [ECF No. 13] is DENIED as moot.
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 31, 2018