Newhouse et al v. Ethicon Inc et al

Filing 138

MEMORANDUM OPINION AND ORDER The 125 MOTION by Ethicon Endo-Surgery Inc, Ethicon Inc, Johnson and Johnson Inc for Summary Judgment and the 134 MOTION by Ethicon Endo-Surgery Inc, Ethicon Inc, Johnson and Johnson Inc to Strike Affidavit Attached to 132 Motion to Strike 125 MOTION by Ethicon Endo-Surgery Inc, Ethicon Inc, Johnson and Johnson Inc for Summary Judgment is GRANTED; and the 130 MOTION by Ethicon Endo-Surgery Inc, Ethicon Inc, Johnson and Johnson Inc for Expedited Hearing, th e 132 MOTION by Delva Newhouse, William Perry Newhouse, III for Objection and to Strike 125 MOTION by Ethicon Endo-Surgery Inc, Ethicon Inc, Johnson and Johnson Inc for Summary Judgment and Demand for Sanctions, the 135 MOTION by Ethicon Endo -Surgery Inc, Ethicon Inc, Johnson and Johnson Inc to Renew Their 119 MOTION by Ethicon Endo-Surgery Inc, Ethicon Inc, Johnson and Johnson Inc to Dismiss or, in the Alternative, Motion to Compel, and the 136 MOTION by Delva Newhouse for Objection and to Show Cause for Prosecution are DENIED AS MOOT. Signed by Judge Joseph R. Goodwin on 2/7/2020. (cc: counsel of record; any unrepresented party) (st)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
DELVA NEWHOUSE, as
Administratrix of the Estate of
William Perry Newhouse III,
Plaintiff,
v.

Case No. 2:17-cv-02735

ETHICON, INC. et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is proceeding on a Complaint [ECF No. 2], filed on May 5, 2017,
by Plaintiff, Delva Newhouse (“Ms. Newhouse”), as Administratrix for the Estate of
William Perry Newhouse, III (“Mr. Newhouse”), her son, who died in Charleston,
West Virginia, on November 16, 2018. Pending before the court are: (1) Defendants’
Motion for Summary Judgment [ECF No. 125]; (2) Defendants’ Motion for Expedited
Hearing [ECF No. 130]; (3) Plaintiff’s Motion for Objection and to Strike the Motion
for Summary Judgment and Demand for Sanctions [ECF No. 132]; (4) Defendants’
Motion to Strike Plaintiff’s Affidavit [ECF No. 134]; (5) Defendants’ Motion to Renew
Motion to Dismiss, or alternative Motion to Compel [ECF No. 135], and (6) Plaintiff’s
Motion for Objection and to Show Cause for Prosecution [ECF No. 136]. For the
reasons stated herein, Defendants’ Motion for Summary Judgment [ECF No. 125]

and Motion to Strike Plaintiff’s Affidavit [ECF No. 134] are GRANTED, all other
motions are DENIED AS MOOT, and this civil action is DISMISSED with prejudice.
I.

Allegations in Complaint
On May 5, 2017, Plaintiff filed the instant Complaint [ECF No. 2] against

Ethicon, Inc., Ethicon Endo-Surgery, Inc., and Johnson & Johnson, Inc. (hereinafter
“Defendants”) contending that Mr. Newhouse was implanted with “VICRYL
Physiomesh Flexible Composite Mesh and VICRYL SUTURES during a[n] abdominal
surgery for a hernia in 2007[,] following a 1995 gunshot wound to [his] abdomen.”
[ECF No. 2, ¶ 8]. The Complaint further alleges that, in 1995, Ethicon sold 3.6 million
Vicryl dissolving sutures that were contaminated with infectious bacteria “during
processing in a breakdown-prone sterilizer unit.” [ECF No. 2, ¶ 9].
The Complaint contends that “ETHICON, a subsidiary of JOHNSON &
JOHNSON, INC[.,] manufactured, marketed, sold and distributed VICRYL
Physiomesh Flexible Composite Mesh that was defective, unreasonably dangerous,
and the company did not provide doctors and patients with ‘reasonably sufficient
technical information’ about the risks of its product.” [Id., ¶ 10]. The Complaint
further contends that Mr. Newhouse “suffered many complications from post surgery
from the Defendant(s) ETHICON et al VICRYL Physiomesh Flexible Composite
Mesh and VICRYL SUTURES that continues to date, including severe chronic
persistent post-operative fistula, chronic [pancreatitis] with recurrent stones, hernia
of the abdominal cavity, abdominal abscesses, chronic abdominal pain and excessive
unexplained weight loss.” [Id., ¶ 11].

The Complaint further alleges that “Local

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General Surgeon Expert Witnesses have declined to operate on [Mr. Newhouse] for
fistula and hernia repairs because of the Defendants[’] negligence, breach of express
warranty, breach of implied warranty by the Defendant(s) ETHICON Vicryl Mesh
and/or Vicryl Surgical Sutures that presented [an] unreasonable and probable risk of
illness and injury.” [Id., ¶13].
Thus, the Complaint is construed to allege claims grounded in: (1) failure to
warn; (2) negligence; (3) breach of implied warranty; and (4) breach of express
warranty. Mr. Newhouse died on November 16, 2018, and Ms. Newhouse (hereinafter
“Plaintiff”), as the administratrix of his estate, was substituted as the plaintiff herein.
II.

Background
On October 16, 2007, Mr. Newhouse had surgery at the University of Virginia

Medical Center (“UVA”). [ECF No. 2-2, Ex. B] (“2007 surgical report”). Mr. Newhouse
presented with a “dinner plate sized abdominal wall incisional hernia.” [Id.] The preoperative diagnosis was “large ventral hernia previously repaired with Vicryl mesh
and split-thickness autograft.” [Id.]1 The 2007 surgical report does not indicate that
any synthetic mesh was used during that surgery; however, a biological mesh graft,
using a product called SurgiMend,2 was completed, and 3-0 Vicryl deep dermal
sutures were used. [Id. at 5].

Mr. Newhouse previously had extensive abdominal surgeries in 1995 and 1996. Subsequent medical
records indicate that skin grafts and Vicryl mesh may have been used in those earlier procedures.
[ECF No. 2-2, Ex. B; ECF No.125, Ex. B at 100-102; Ex. C].
2 According to Defendants’ motion documents, SurgiMend is a biological mesh product derived from
“fetal and neonatal bovine dermis,” which is manufactured by TEI Biosciences, a subsidiary of Integra
LifeSciences Corporation. [ECF No. 125, Ex. D, at 2; ECF No. 126 at 4 n.3].
1

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The following undisputed facts were derived from Ms. Newhouse’s deposition
testimony [ECF No. 125, Ex. B]:




In 2009, the Newhouses began receiving telephone and mail solicitations from
attorneys involved in hernia mesh litigation. However, they declined to pursue
litigation at that time. [Id. at 27-32, 38-42].



Between 2009 and 2011, doctors told the Newhouses that the abscesses were
caused by a reaction to an infected Vicryl suture, but that mesh infection was
a possible contributing factor. Ms. Newhouse further stated that, during that
time, treatment of the infections with antibiotics became less effective. [Id. at
118, 145-150].



During a doctor’s visit in Charleston, West Virginia, on October 13, 2011, it
was recommended that Mr. Newhouse return to UVA to explore further
treatment for suspected “complex mesh infection.” [Id. at 146-148; ECF No.
125, Ex. F]. Ms. Newhouse testified that, as of that date, she and Mr. Newhouse
knew that the mesh was possibly infected and, absent removal thereof, his
abdominal infection could recur and worsen. [ECF No. 125, Ex. B at 149-153,
172, 176-177].



III.

Mr. Newhouse’s health problems, which Ms. Newhouse attributes to the mesh
and sutures, began by early 2009, when he developed frequent and recurring
abscesses of the abdomen, leading to the formation of a fistula. [Id. at 118-120,
142-143, 152-153].

Due to her son’s recurrent infections and the solicitations from attorneys
concerning the mesh litigation, Ms. Newhouse conducted her own research
concerning complications from hernia mesh placement. Thus, Ms. Newhouse
confirmed that, by 2012, her research led her to discuss with Mr. Newhouse’s
doctors her belief that mesh could be causing his complications. [Id. at 43-44,
46-47, 152-153, 169-172].
Defendants’ Motion for Summary Judgment
On December 6, 2019, the defendants filed a Motion for Summary Judgment

[ECF No. 125] and accompanying Memorandum of Law [ECF No. 126], asserting that
Plaintiff’s claims are time-barred under Virginia’s two-year statute of limitations.
The motion further contends that Plaintiff’s claims fail as a matter of law because

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she has not properly offered any expert testimony establishing that Defendants’ mesh
or suture products were implanted in Mr. Newhouse in 2007, or that his alleged
injuries were caused by a defect in any of Defendants’ mesh or suture products.
On January 3, 2020, Plaintiff filed a Motion for Objection and to Strike
Defendants’ Motion for Summary Judgment and Demand for Sanctions [ECF No.
132] (hereinafter “Response”). Plaintiff’s Response and her accompanying affidavit
[ECF No. 132-2] attempt to overcome Defendants’ statute of limitations argument by
contradicting her deposition testimony that Mr. Newhouse was experiencing
complications following his 2007 surgery as early as 2009. Instead, Plaintiff now
contends, for the first time, that Mr. Newhouse began experiencing complications
from the 2007 surgery in 2016. [Id. at 1].
On January 13, 2020, Defendants filed a Reply [ECF No. 133], reiterating that
Mr. Newhouse’s medical records and Plaintiff’s deposition testimony clearly establish
that Plaintiff’s claims accrued, and the statute of limitations began to run, no later
than 2012. Defendants’ Reply states that Plaintiff’s Response does not dispute the
applicability of Virginia’s two-year statute of limitations, or Defendants’ assertion
that it begins to run when an injury develops.
Defendants further contend that Plaintiff’s affidavit is a sham affidavit that
contradicts prior sworn testimony and evidence of record. [ECF No. 133 at 3]. Thus,
Defendants request that this court disregard Plaintiff’s affidavit and have moved to
strike the same. [ECF No. 133 at 3-4; ECF No. 134]. Defendants also filed a Motion
to Renew their prior Motion to Dismiss or alternative Motion to Compel [ECF No.

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135], asserting that Plaintiff failed to timely comply with the undersigned’s Order to
produce medical records.
On February 6, 2020, Plaintiff filed a Motion for Objection and to Show Cause
for Prosecution [ECF No. 136] requesting that the court deny Defendants’ motions.
Attached to Plaintiff’s motion is another affidavit [ECF No. 136-1] (“second affidavit”)
and other exhibits. In pertinent part, the second affidavit revises Plaintiff’s prior
affidavit to include a statement that Mr. Newhouse “was not suffering any serious
complications

from

Defendants

ETHICON

well-known

defective

VICRYL

polypropylene hernia mesh and suture products until 2016.” [Id. at 1, ¶ 1].
IV.

Standard of Review
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).
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

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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 F.3d 188, 191 (4th Cir. 1997).
V.

Discussion

A.

Sham affidavits

It is well-settled that “a party cannot create a triable issue in opposition to
summary judgment simply by contradicting his deposition testimony with a
subsequent affidavit.” Moore v. Mountain State Health Alliance, [No. 2:16-cv-00014,]
2018 WL 1309739, at *3 (W.D. Va. Mar. 12, 2018) (quoting Hernandez v. Trawler

Miss Vertie Mae, Inc., 187 F.3d 432, 438 (4th Cir. 1999)). Thus, “‘[a]t the summary
judgment stage, if an affidavit is inconsistent with the affiant’s prior deposition
testimony, courts may disregard the affidavit pursuant to the sham-affidavit rule.’”

Moore, 2018 WL 1309379, at *3 (quoting Kinser v. United Methodist Agency for the
Retarded-W.N.C., Inc., 613 F. Appx. 209, 210 (4th Cir. 2015) (unpublished)).
I FIND that both of Plaintiff’s affidavits [ECF Nos. 132-2 and 136-1] are sham
affidavits that contradict her prior sworn testimony, and I will disregard and strike
the same. Accordingly, it is hereby ORDERED that Defendants’ Motion to Strike

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Affidavit [ECF No. 134] is GRANTED, and the affidavits contained in ECF Nos. 1322 and 136-1 are STRICKEN from the record.

B.

Statute of limitations

In a tort action, West Virginia follows the traditional rule that the applicable
substantive law is determined by the place of injury. Chemtall Inc. v. Madden, 607
S.E.2d 772, 779–80 (W. Va. 2004) (citation omitted); see also Woodcock v. Mylan, Inc.,
661 F. Supp.2d 602, 605 (S.D. W. Va. 2009) (citing Klaxon Co. v. Stentor Electric Mfg.

Co., 313 U.S. 487, 496–97 (1941)). Although Mr. Newhouse resided in and died in
West Virginia, his cause of action arose in Virginia, where he had the subject
surgeries and suffered his alleged injuries. Thus, the substantive law of Virginia
governs Plaintiff’s claims.
Under Virginia law, personal injury suits must be filed “within two years after
the cause of action accrues,” regardless of the theory of recovery. Va. Code § 8.01243(A); see also id. § 8.01-246 (providing that § 8.01-243 governs limitation period for
warranty actions based on products liability). Virginia Code § 8.01-230 clarifies that
a cause of action “shall be deemed to accrue and the prescribed limitation period shall
begin to run from the date the injury is sustained . . . and not when the resulting

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damage is discovered.”3 Thus, as aptly noted by Defendants, under the law applicable
at the time, “in a personal injury action . . . it does not matter when a plaintiff
discovered—or reasonably could have discovered—that she was injured, or when she
could have discovered that her injury was caused by the defendant’s product. Rather,
the only question is when the injury occurred.” Torkie-Tork v. Wyeth, 739 F. Supp.2d
887, 891 (E.D. Va. 2010).
Plaintiff filed the instant Complaint on May 5, 2017.

However, in her

deposition, Plaintiff acknowledged that Mr. Newhouse’s complications had developed
by 2009, when he began to experience recurrent abscesses of the abdomen and
developed a fistula. [ECF No. 125, Ex. B at 118-120, 142-143, 152-153]. Even taking
the undisputed evidence in the light most favorable to Plaintiff, Plaintiff was
certainly aware of the alleged causes of Mr. Newhouse’s injuries by 2012. Thus, the
Complaint herein is untimely under Virginia’s two-year statute of limitations.
Accordingly, I FIND that there is no genuine issue of material fact that Plaintiff’s
Complaint is time-barred, and, thus, Defendants are entitled to judgment as a matter

In 2016, Virginia Code § 8.01-249 was amended to provide that medical device product liability
actions do not accrue until the plaintiff “knew or should have known of the injury and its causal
connection to the device.” Va. Code § 8.01-249(9). However, Plaintiff’s claims were time-barred before
this amendment and, as a matter of due process, cannot be revived by this amendment. See Parris v.
Appalachian Power Co., 343 S.E.2d 455, 461 (Va. Ct. App. 1986) (“[O]nce the limitations period has
run, any subsequent amendments to that period generally would have no effect on the parties’
procedural rights.”); Lewis v. Gupta, 54 F. Supp. 2d 611, 617 (E.D. Va. 1999) (refusing to retroactively
apply tolling statute that went into effect after statute of limitations had expired); see also Starnes v.
Cayouette, 419 S.E.2d 669, 672 (Va. 1992) (due process protections do not allow retroactive application
of amended statute of limitations of previously barred claim).
3

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of law on this basis.4 Therefore, it is hereby ORDERED that Defendant’s Motion for
Summary Judgment [ECF No. 125] is GRANTED.
VI.

Other pending motions
In light of the rulings made herein, Defendants’ Motion for Expedited Hearing

[ECF No. 130], Plaintiff’s Motion for Objection and to Strike Defendants’ Motion for
Summary Judgment and for Sanctions [ECF No. 132], Defendants’ Motion to Renew
Motion to Dismiss, or alternative Motion to Compel [ECF No. 135], and Plaintiff’s
Motion for Objection and to Show Cause for Prosecution [ECF No. 136] are DENIED
AS MOOT.
The Clerk is directed to transmit this Order to counsel of record and any
unrepresented party.
ENTER:

February 7, 2020

In light of this finding, it is unnecessary to reach Plaintiff’s allegations that Defendants’ products
were used or Defendants’ other grounds for summary judgment concerning causation.
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