Bellew v. Ethicon, Inc., CIVIL ACTION NO. 2:13-cv-22473
| Decision Date | 24 November 2014 |
| Docket Number | CIVIL ACTION NO. 2:13-cv-22473 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | DIANNE M. BELLEW, Plaintiff, v. ETHICON, INC., et al., Defendants. |
Pending before the court is the defendants' Motion for Summary Judgment on All Claims ("Motion for Summary Judgment") [Docket 105] and the plaintiff's Motion to Strike or Exclude Defendants' Untimely Summary Judgment Filing ("Motion to Strike") [Docket 140]. Responses and replies have been filed, and the motion is ripe for review. As set forth below, the defendants' Motion for Summary Judgment [Docket 105] is GRANTED in part and DENIED in part. The plaintiff's Motion to Strike [Docket 140] is DENIED as moot.
This bellwether 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 67,000 cases currently pending, approximately 22,000 of which are in the Ethicon, Inc. MDL, MDL 2327. In this particular case, the plaintiff was surgically implanted with the Prolift Anterior Pelvic Floor Repair System ("Prolift"), a mesh product manufactured by Ethicon andJohnson & Johnson (collectively, "Ethicon") to treat POP. (See Short Form Compl. [Docket 1], at 2).1 The plaintiff received her surgery in Arizona. (Id. at 3). The plaintiff claims that as a result of implantation of the Prolift, she has experienced multiple complications, including mesh erosion, mesh contraction, inflammation, dyspareunia (pain during sexual intercourse), urinary incontinence, chronic pain, and recurring prolapse of organs. (Master Compl. ¶ 49). In addition, she had four subsequent operations to remove and revise the implanted mesh. (Pl. Fact Sheet [Docket 206-1], at 7). The plaintiff alleges negligence, failure to warn, design defect, common law fraud, fraudulent concealment, negligent misrepresentation, breach of express warranty, violation of consumer protection laws, gross negligence, and punitive damages. (Short Form Compl. [Docket 1], at 4).2
In the instant motion, Ethicon argues the all of the plaintiff's claims are barred by the statute of limitations. (Mot. for Summ. J. [Docket 105], at 1). In the alternative, Ethicon moves for summary judgment on the plaintiff's claims for design defect, manufacturing defect, fraud, fraudulent concealment, constructive fraud, negligent misrepresentation, breach of warranty, consumer protection, unjust enrichment, and negligent infliction of emotional distress. (Id.). As noted above, the plaintiff has abandoned her claims for manufacturing defect, breach of implied warranty, constructive fraud, unjust enrichment, negligent infliction of emotional distress, and strict liability-product defect. (See Pl.'s Opp. [Docket 153], at 1 n.1). Accordingly, Ethicon's motion with regard to the abandoned claims is GRANTED, and those claims are DISMISSED.
To obtain summary judgment, the moving party must show that there is no genuine issue 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., Ltd. 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 Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987); Ross v. Comm'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), abrogated on other grounds, 490 U.S. 228 (1989).
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 involvefederal or state law. Here, the plaintiff is an Arizona resident who was implanted with the Prolift in Arizona, but she filed her complaint directly into MDL 2327 in the Southern District of West Virginia. "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." Sanchez v. Boston Scientific Corp., 2:12-cv-05762, 2014 WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014); (see also Pretrial Order # 15, MDL 2327, at 2 n.2 ()). Arizona is the originating jurisdiction, and the court must consult Arizona's choice-of-law principles to determine the substantive law applicable to the plaintiff's claims.
The parties do not appear to dispute that Arizona law applies to the substantive issues in this case, and Arizona's choice-of-law principles support their position. For tort claims, Arizona courts apply the "most significant relationship" test from the Restatement (Second) of Conflict of Laws (1971). Bates v. Super. Ct., 749 P.2d 1367, 1369 (Ariz. 1988). Section 146 of the Second Restatement provides that in a personal injury case such as this, the court should apply "the local law of the state where the injury occurred . . . unless, with respect to the particular issue, some other state has a more significant relationship [ ] to the occurrence and the parties, in which event the local law of the other state will be applied." Id. (quoting Restatement (Second) Conflict of Laws § 146). Here, the injury occurred in Arizona. As such, Arizona law applies unless another state has a more significant relationship to this case and these parties.
To make this determination, the court should consider the following:
(1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place ofincorporation, and place of business of the parties; and (4) the place where the relationship, if any, between the parties is centered.
Id. Each of these considerations points to applying Arizona law rather than another state's law—the injury occurred in Arizona; the allegedly defective product was implanted and warned about in Arizona; the plaintiff resides in Arizona; and the relationship between the parties exists only because of the implant surgery, which took place in Arizona. Therefore, Arizona law applies to the substantive claims in this matter.3
In Arizona, there is a two-year statute of limitations for personal injury actions, including product liability actions. A.R.S. §§ 12-542, 12-551, 12-681; see generally Wetzel v. Commercial Chair Co., 500 P.3d 314 (Ariz. 1972) (). However, under Arizona's discovery rule, "a cause of action accrues once the plaintiff knows of the injury and the causal connection between the defendant's product and that injury." Mack v. A.H. Robins Co., 573 F. Supp. 149, 154 (D. Ariz. 1983). In other words, the cause of action accrues when the plaintiff discovers or should have discovered the injury and its cause. See id. at 153-54. Although "plaintiffs are charged with due diligence in pursuing their claims," a plaintiff is not required to have knowledge of the defendant's improper conduct or defect in the product in order to trigger accrual. Id. at 154 (citing Rodriquez v. Manoil, 450 P.2d 737 (Ariz. Ct. App. 1969)).
Ethicon argues that the plaintiff's claims are barred by the statute of limitations because Dr. Dehasse, Ms. Bellew's implanting physician, told her that "she was having complicationsdue to her mesh implant in May or June of 2011 at the latest," but she did not serve her complaint until July 13, 2013. Mot. for Summ. J. on All Claims ( ) [Docket 106], at 3, 5). Ms. Bellew's medical records note that she experienced mesh complications in 2011, which resulted in Ms. Bellew undergoing a removal procedure on July 27, 2011. (Id. at 5-6). However, Dr. Dehasse's deposition testimony regarding what she actually told Ms. Bellew is inconsistent and inconclusive. For example, Dr. Dehasse responded equivocally when asked about Ms. Bellew's June 2011 visit:
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