Bailey v. Ethicon, Inc.
| Decision Date | 07 June 2021 |
| Docket Number | Case No: 7:20-cv-622 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | TERESA M. BAILEY, et al., Plaintiffs v. ETHICON, INC., et al., Defendants. |
MEMORANDUM OPINION
This matter is before the court on defendants Ethicon, Inc., Ethicon, LLC, and Johnson & Johnson's (collectively, "Ethicon") motion for summary judgment under Rule 56(a) of the Federal Rules of Civil Procedure. ECF No. 35. Plaintiff Teresa Bailey's counsel also filed a motion to withdraw as attorney, ECF No. 66. For the reasons discussed below, the court will GRANT Ethicon's motion for summary judgment in its entirety. Because summary judgment will be granted, Bailey's counsel's motion to withdraw will be DENIED as moot.
Teresa Bailey is one of many individuals who filed suit against Ethicon for injuries suffered after being treated with Ethicon's pelvic mesh implant, TVT-O.1 Bailey lives in Virginia and received her surgery on March 5, 2008, at Carilion New River Valley Medical Center ("Carilion") in Radford, Virginia.2 Short Form Compl., ECF No. 1, at 1, 4. The physician who performed her procedure was Weldon Shaffer, III, M.D. Id. at 4. The purpose of the surgery was to treat Bailey's pelvic relaxation and stress urinary incontinence and relatedsymptoms. Pl. Fact Sheet, ECF No. 35-1, at 4. Upon the recommendation of Dr. Shaffer, Bailey underwent a TVT-O mesh implant surgery. Bailey testified that she only relied on Dr. Shaffer's advice when deciding whether to pursue the surgery. Bailey Dep., ECF No. 37-2, at 121.
Dr. Shaffer testified that he was trained by Ethicon in Celebration, Florida, on several occasions regarding the proper use of TVT implants. Shaffer Dep., ECF No. 37-1, at 14-15, 18. He was also trained by an Ethicon doctor located at Carilion, Tamara Howell, on how to perform TVT-O procedures and had to perform a certain number of procedures under her direct supervision before being qualified to do the procedure on his own. Id. at 17-18. Dr. Shaffer further testified that potential risks and complications of the device, such as vaginal perforation, urethral injuries and erosion, mesh protrusion, infection, and device failure, were provided to him by Ethicon. Id. at 17. However, Dr. Shaffer already knew of these complications for both TVT and TVT-O. Id. Despite knowing these potential risks, Dr. Shaffer found the TVT-O to have good outcomes in his patients and generally found the implant to be safe. Id. at 21. Dr. Shaffer stands by his decision to treat Bailey with the TVT-O implant. Id. at 50.
To address potential TVT-O implant complications, Ethicon provided Instructions for Use ("IFU") and patient brochures to physicians. Id. at 33-34. While Dr. Shaffer referenced these materials, he did not solely rely on them when recommending mesh implants for patients. Id. at 31-32. Dr. Shaffer also said that it was his standard procedure to go over surgical risks and complications with his patients. Id. However, Bailey alleges that she does not remember receiving any brochures or pamphlets from Ethicon, but one could have been givento her by Dr. Shaffer. Bailey Dep., at 106. Since 2010, Bailey has complained of suffering from various side effects of the surgery. Pl. Fact Sheet at 5. However, Bailey was unaware of the connection between her symptoms and the TVT-O implant surgery until 2012. Tr. of Apr. 19, 2021 Hr'g, at 18.
On March 7, 2013, Bailey brought the present action as a part of a Multi-District Litigation ("MDL"), alleging negligence (Count I); strict liability - manufacturing defect (Count II); strict liability - failure to warn (Count III); strict liability - defective product (Count IV); strict liability - design defect (Count V); common law fraud (Count VI); fraudulent concealment (Count VII); constructive fraud (Count VIII); negligent misrepresentation (Count IX); negligent infliction of emotional distress (Count X); breach of express warranty (Count XI); breach of implied warranty (Count XII); violation of consumer protection laws (Count XIII); gross negligence (Count XIV); unjust enrichment (Count XV); loss of consortium (Count XVI); punitive damages (Count XVII); and discovery rule and tolling (Count XVIII).3 While in MDL, Ethicon filed for summary judgment. Counsel for Bailey also filed to withdraw from this case. While Ethicon does not oppose counsel's withdrawal, Ethicon requests that the court rule on summary judgment before ruling on the motion to withdraw in order to prevent undue delay. ECF No. 67. These motions were not addressed in MDL, and the case was transferred to the Western District of Virginia on October 23, 2020.
Ethicon asserts that the Baileys' claims are barred by Virginia's statute of limitations. ECF No. 36. Ethicon further contends that even if Bailey's fraud claims are timely, they failbecause Bailey did not rely on any Ethicon documents to inform her decision about undergoing the implant surgery. Id. Bailey opposes. ECF No. 37. The court heard argument on April 19, 2021, and the matters are ripe for resolution.
Under Rule 56(a), the court must "grant summary judgment if the movant shows 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court should consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with . . . [any] affidavits" filed by the parties. Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Id. (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
In determining whether a genuine issue of material fact exists, the court views the facts and draws all reasonable inferences in the light most favorable to the non-moving party. Glynn, 710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed, "[i]t is an 'axiom that in ruling on a motion for summary judgment, the evidence of thenonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.'" McAirlaids, Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 310 (4th Cir. 2014) (internal alteration omitted) (citing Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam)). Moreover, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255.
The non-moving party must, however, "set forth specific facts that go beyond the 'mere existence of a scintilla of evidence.'" Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252). The non-moving party must show that "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir. 2005) (quoting Anderson, 477 U.S. at 249). "In other words, to grant summary judgment the [c]ourt must determine that no reasonable jury could find for the nonmoving party on the evidence before it." Moss v. Parks Corp., 985 F.2d 736, 738 (4th Cir. 1993) (quoting Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990)). Even when facts are not in dispute, the court cannot grant summary judgment unless there is "no genuine issue as to the inferences to be drawn from" those facts. World-Wide Rights Ltd. P'ship v. Combe Inc., 955 F.2d 242, 244 (4th Cir. 1992).
Broadly, there are two categories of claims in this case: non-fraud and fraud claims.4 Ethicon argues that both categories of claims are time-barred by the two-year personal injury statute of limitations as her claims accrued at the time of her surgery. Bailey opposes, asserting at argument that it is fundamentally unfair for the statute of limitations to prevent her frombringing a viable claim even when she was not, nor could not, have been aware of any problems associated with her TVT-O implant.5 While Bailey concedes there is no case law to support her assertion, she notes that Virginia's accrual statute, Va. Code § 8.01-249, was subsequently amended to help ameliorate the hardship of the running of this statute of limitations. As such, Bailey argues that this amendment should be retroactively applied to her claims. Moreover, Bailey argues that her fraud claims should be decided on their merits because under the discovery rule the claims are timely.
As to the non-fraud claims, Bailey is barred from recovery because the two-year personal injury statute of limitations ran two years after her surgery, in 2010. Virginia law requires personal injury claims be filed "within two years after cause of action accrues" regardless of the theory of recovery. Va. Code Ann. § 8.01-243.A; Adams v. Am. Optical Corp., 979 F.3d 248, 255 (4th Cir. 2020). The date of accrual is "the date the injury is sustained," not when the damage is discovered. Va. Code Ann. § 8.01-230; Kerns v. Wells Fargo Bank, N.A., 296 Va. 146, 155, 818 S.E.2d 779, 782-83 (2018). Specifically, for products liability cases involving medical devices, the date the injury is sustained is the date of implantation regardless of whether more...
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