Clabo v. Johnson & Johnson Health Care Sys., Inc.

• Decision Date: 14 December 2020
• Docket Number: No. 20-5168,20-5168
• Citation: 982 F.3d 989
• Parties: Leslie CLABO, Plaintiff-Appellant, v. JOHNSON & JOHNSON HEALTH CARE SYSTEMS, INC.; Ethicon Endo-Surgery, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

982 F.3d 989

Leslie CLABO, Plaintiff-Appellant,

v.JOHNSON & JOHNSON HEALTH CARE SYSTEMS, INC.; Ethicon Endo-Surgery, Inc., Defendants-Appellees.

No. 20-5168

United States Court of Appeals, Sixth Circuit.

Argued: November 17, 2020

Decided and Filed: December 14, 2020

ARGUED: Richard Baker, THE LAW OFFICE OF RICHARD BAKER, Knoxville, Tennessee, for Appellant. Susanna M. Moldoveanu, BUTLER SNOW LLP, Memphis, Tennessee, for Appellees. ON BRIEF: Richard Baker, THE LAW OFFICE OF RICHARD BAKER, Knoxville, Tennessee, for Appellant. Susanna M. Moldoveanu, Amy M. Pepke, BUTLER SNOW LLP, Memphis, Tennessee, for Appellees.

Before: KETHLEDGE, DONALD, and LARSEN, Circuit Judges.

BERNICE BOUIE DONALD, Circuit Judge.

Beginning in 2003, Leslie Clabo had several procedures performed to correct certain painful and uncomfortable medical issues. To alleviate her suffering, Clabo was implanted with a TVT transvaginal mesh device that was manufactured by Defendants-Appellees, Johnson & Johnson Health Care Systems, Inc. and Ethicon Endo-Surgery, Inc. (collectively, "the Defendants"). Over time, Clabo was forced to repair and replace the mesh product because it eroded and would intermittently not serve its intended purpose. After Clabo initiated a products liability lawsuit, in which she alleged that the Defendants were liable for her injuries under Tennessee law, Defendants filed a motion for summary judgment, asserting that Clabo's claims were time-barred in accordance with Tennessee's statute of repose. When Clabo subsequently filed a motion to amend her complaint and add new claims related to her injuries, the Defendants argued that her motion was futile because all of her claims were time-barred. The district court ultimately agreed with the Defendants, granted their motion for summary judgment, and denied Clabo's motion to amend her complaint. On appeal, Clabo's primary contention is that the district court erred in determining her date of injury. Because the record undoubtedly demonstrates that Clabo's injuries occurred outside of the applicable statute of repose period, we AFFIRM the district court.

I.

In May 2003, Leslie Clabo underwent surgery to correct two conditions that she developed: pelvic organ prolapse and urinary incontinence. To treat these conditions, Clabo's doctor implanted her with a TVT transvaginal mesh sling device that the Defendants manufactured. By 2006, she began experiencing additional discomfort, including pelvic pain, urinary issues, scarring, and pain during sexual intercourse. After being notified by her doctor that the mesh from her device had eroded through her vaginal canal, Clabo had a second procedure in April 2006 to remove the TVT implant. Approximately a month later, Clabo had surgery to implant a mesh sling similar to the one she had removed. In 2011, Clabo had yet another surgery. Again due to mesh erosion, she had pieces of her most recent implant removed and other parts repaired. Though Clabo had several procedures performed to address her abovementioned medical issues, she alleges that it was not until July 2012 that she finally realized (after speaking with a physician-friend) that the TVT mesh product was the likely cause of her persistent pain and suffering.

Seeking compensation for her resulting impairments, on May 6, 2013, Clabo filed a lawsuit against the Defendants, asserting products liability claims under the Tennessee Products Liability Act of 1978 ("TPLA"), Tenn. Code Ann. §§ 29–28–101 et seq. Defendants subsequently filed a motion for summary judgment, arguing that Clabo's claims were barred by Tennessee's statute of repose, which prohibits products liability claims brought more than six years after the date of the injury that gave rise to the suit. See Tenn. Code. Ann. § 29-28-103(a). Clabo responded by filing a motion to amend her complaint, and the Defendants opposed Clabo's motion on futility grounds. The district court denied Clabo's motion to amend and granted summary judgment in favor of the Defendants, finding that Clabo's initial injury occurred during 2006—making her claims time-barred, and therefore, futile. Clabo timely appealed, and now challenges the district court's date of injury determination. Clabo also alleges that the district court wrongfully decided to strike her supplemental brief, which she filed in response to the Defendants’ summary judgment motion.

II.

We begin with the Defendants’ motion for summary judgment. The Court reviews a district court's grant of summary judgment de novo, "drawing all reasonable inferences in favor of the nonmoving party." Rocheleau v. Elder Living Const., LLC , 814 F.3d 398, 400 (6th Cir. 2016) (quotation omitted). Summary judgment is appropriate where the movant demonstrates that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Accordingly, summary judgment must be entered where the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In order for the non-movant to defeat a summary-judgment motion, there must be evidence on which the jury could reasonably find for the [non-movant]." Bard v. Brown County , 970 F.3d 738, 748 (6th Cir. 2020) (alteration in original) (quoting Klepper v. First Am. Bank , 916 F.2d 337, 342 (6th Cir. 1990) ) (internal quotation marks omitted); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Whether or not the district court erred by granting the Defendants’ summary judgment motion can be resolved by answering one question: when exactly was Clabo first injured by the Defendants’ product? Defendants argue that, if their product caused Clabo's injury, the injury first occurred in 2006, when she had surgery to remove the eroded mesh. But Clabo asserts that at the earliest, she was not injured by the Defendants’ product until after her 2011 surgery. Alternatively, Clabo claims that she was injured by the mesh device in 2012, because at that point, she was informed by a physician that the mesh device was the cause of her medical problems. The resolution to this issue therefore depends on how "injury" is defined.

The term "injury" is not defined in the TPLA, so we "are obliged to decide the case as we believe the [Tennessee] Supreme Court would." Cobb v. Tenn. Valley Auth. , 595 F. App'x 458, 459 (6th Cir. 2014) (quoting Louisville/Jefferson Cnty. Metro Gov't v. Hotels.com, L.P. , 590 F.3d 381, 385 (6th Cir. 2009) ). In doing so, we are to be mindful that the Tennessee Supreme Court would "ascertain and give effect to the legislative intent without unduly restricting or expanding [the] statute's coverage beyond its intended scope." Daron v. Dep't of Correction , 44 S.W.3d 478, 480–81 (Tenn. 2001) (quotation omitted). Moreover, if the language in the Tennessee statute in question is unambiguous, we will "apply its ordinary and plain meaning." Pennycuff v. Fentress Cnty. Bd. of Educ. , 404 F.3d 447, 452 (6th Cir. 2005) (quoting Bowden v. Memphis Bd. of Educ. , 29 S.W.3d 462, 465 (Tenn. 2000) ).

Because the text of Tenn. Code Ann. § 29-28-103(a) —"[a]ny action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition ... must be brought within six (6) years of the date of injury"—is rather unambiguous, we give "injury" its plain meaning. Black's Law Dictionary defines "injury" as "[a]ny harm or damage" or "[a]nything said or done in breach of a duty not to do it, if harm results to another in person." Injury , Black's Law Dictionary (11th ed. 2019). Because "harm" is defined by Black's Law Dictionary as "[i]njury, loss, damage; material or tangible detriment," Harm , Black's Law Dictionary (11th ed. 2019), "date of injury," in this context, refers to the instance when an individual was first physically affected by a particular defect in a seller or manufacturer's product in a manner that was to his or her detriment.

This definition aligns with the Tennessee legislature's intent behind enacting the TPLA. The Tennessee legislature intended the TPLA to "limit the time within which a suit alleging products liability may be brought and thereby address the actuarial concerns of the insurance industry and allow for accurate assessment of liability exposure for insurance purposes." Sharp v. Richardson , 937 S.W.2d 846, 850 (Tenn. 1996). It was significant that the Tennessee legislature chose to set forth a specific limitations period for such actions, rather than exclusively rely on other more general limitations periods, because it demonstrates that while this provision might lead to harsh results, it is necessary to achieve the Tennessee legislature's desired outcomes. See Penley v. Honda Motor Co. , 31 S.W.3d 181, 187 (Tenn. 2000). With that definition in mind, we turn to analyzing the evidence presented by the parties.

The evidence in the record reveals that Clabo was injured by Defendants’ product as early as 2006. Clabo's own testimony confirms this finding:

Q: [I]s it correct that a doctor informed you that the mesh had begun to erode through the vaginal canal?

A: That's correct.

Q: And is that the reason that you then had surgery with Dr. [Frederick] Klein in April of 2006 to remove the eroded mesh?

A: Yes.

...

Q: And after that surgery with Dr. Klein, you then a month later had another sling implanted by Dr. Klein?

A: Correct.

...

Q: And I've got a note from Dr. Klein about mid-May of ’06 where you were wanting to have that mesh replaced ASAP. Does that sound right?

A: It probably does.

Clabo additionally makes similar admissions in a fact sheet that she filed in connection with a related multidistrict litigation matter. On the fact sheet, in response to a question regarding when she was first...