Crowe v. Johnson & Johnson
Decision Date | 15 June 2022 |
Docket Number | C. A. 1:21-cv-210-TFM-C |
Parties | ROWENA K. CROWE and ROBERT H. CROWE, Plaintiffs, v. JOHNSON & JOHNSON and ETHICON, INC., Defendants. |
Court | U.S. District Court — Southern District of Alabama |
ROWENA K. CROWE and ROBERT H. CROWE, Plaintiffs,
v.
JOHNSON & JOHNSON and ETHICON, INC., Defendants.
C. A. No. 1:21-cv-210-TFM-C
United States District Court, S.D. Alabama, Southern Division
June 15, 2022
MEMORANDUM OPINION AND ORDER
TERRY F. MOORER, UNITED STATES DISTRICT JUDGE
Now pending before the Court is the Defendants' Motion for Summary Judgment on the Statute of Limitations and accompanying brief (Docs. 90, 91, filed 12/9/21).[1] Having considered the motion, response, reply, and sur-reply, the evidentiary submissions in support of the motion, and the relevant law, the Court finds Defendants' motion for summary judgment (Doc. 90) is due to be GRANTED for the reasons articulated below.
I. PARTIES AND JURISDICTION
Plaintiffs Rowena K. Crowe (“Mrs. Crowe”) and Robert H. Crowe (“Mr. Crowe”) (collectively, “Plaintiffs”) assert several claims against Defendants Ethicon, Inc. and Johnson & Johnson (collectively “Defendants” or “Ethicon”). See Doc. 1; Doc. 10 at 5-32; Doc. 58-3 (MDL - Amended Short Form Complaint).
This Court has original jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. § 1332
(diversity jurisdiction). Plaintiffs contested venue, but this matter was ultimately transferred to this Court. See Doc. 39.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
On May 24, 2007, Mrs. Crowe presented to Dr. Robert C. Brown's office as a new patient and reported a four-year history of vaginal protrusion, pelvic pressure, urinary frequency, and incontinence. Doc. 91-1 at 2. Dr. Brown and Dr. Angela McCool[2] are both gynecologists who practiced at Brown & McCool OBGYN. Doc. 92-1 at 6. On June 13, 2007, a urodynamic study was performed on Mrs. Crowe and treatment options such as a mesh repair were discussed. Doc. 91-2. On July 11, 2007, Mrs. Crow gave written consent to Dr. McCool-Pearson to implant the Prolift Pelvic Floor Repair System (“Prolift”) and the TVT-Obturator (“TVT-O”). Doc. 91-3. The Prolift includes a pre-cut “Nonabsorbable Prolene Soft Mesh” implant and a set of instruments to facilitate mesh implant placement. Doc. 92-4. The TVT-O is a single patient use procedure kit consisting of one piece of Prolene polypropylene mesh tape and a set of instruments to facilitate mesh implant placement. Doc. 92-5. On July 17, 2007, Dr. McCool-Pearson performed surgery on Mrs. Crowe at Thomas Hospital in Fairhope, Alabama. Doc. 91-4. Dr. McCool-Pearson implanted Prolift to repair her pelvic organ prolapse and TVT-O to treat her stress urinary incontinence. Docs. 91-4, 91-5. Mrs. Crowe states that she experienced injuries for the first time within a year after the July 17, 2007 implant surgery. Compare Doc. 91-6 at ¶ 6 with Doc. 92 at ¶ 11 (stating Mrs. Crowe testified she began to experience her pain in 2010). Mrs. Crowe states that she experienced horrific pelvic pain, pain during sexual intercourse, infections, back and leg pain,
and urinary retention because of the Ethicon mesh products. Id. Mrs. Crowe states that her pain during sexual intercourse (dyspareunia), her inability to engage in sexual intercourse, and her constipation began in 2010. Doc. 91-7 at 4. Dr. Bobby L. Shull and Dr. Erin T. Carey provide testimony that is consist with Mrs. Crowe beginning to experience pain in 2010. Doc. 91-8 at 6 -8; Doc. 91-9 at 22; Doc. 91-10 at 4. On August 5, 2010, Mrs. Crowe saw Dr. Brown and allegedly complained of pain in the left groin that started a few months ago and expressed her concern that the pain she was experiencing may be related to her Prolift and TVT-O implants. Doc. 91-12 at 2. Dr. Brown noted the left side of the mesh was tighter than the right side and that releasing the mesh on the left side was a possibility. Id. Dr. Brown also testified that at this point it was not clear if the mesh was tighter or if Mrs. Crowe was having a muscle spasm. Doc. 92-2 at 16.
After Dr. Brown performed a pelvic exam on Mrs. Crowe, he informed her that he thought she had a herniated disc and wanted her to get an MRI of her spine. Id.; Doc. 92-8 at 21-22. Mrs. Crowe underwent an MRI and DEXA bone scan which showed that Mrs. Crowe had a herniated disc. Dr. Brown recommended Mrs. Crowe visit Dr. James West, an orthopedic in Mobile. Doc. 92-2 at 16; Doc. 92-8 at 21-22. On August 23, 2010, Mrs. Crowe visited Dr. West at the Orthopedic Group in Mobile. Doc. 92-9. Despite Dr. West prescribing medications, therapy, and epidurals for Mrs. Crowe's lumbar herniation left L5-S1 with neural foraminal encroachment, her pain was not alleviated. Accordingly, Mrs. Crowe underwent microdiscectomy surgery of her left L5/S1 on September 28, 2010 at Mobile Surgery Center. Docs. 92-10, 92-11.
On December 14, 2010, Mrs. Crowe visited Dr. Brown again concerning her pelvic pain that she asserts began 2 weeks prior and had been progressively worsening. Dr. Brown noted to consider possible release of mesh from left side as they previously discussed. Doc. 91-9 at 9. During a healthcare appointment on January 5, 2011, Mrs. Crowe complained of pelvic pain,
urinary frequency, lower back pains, and vaginal and rectal pressure. Doc. 91-15 at 2. On January 12, 2011, Dr. McCool-Pearson recorded that Ms. Crowe should be treated for depression and that she might need an evaluation and a diagonal laparoscopic colpopexy, which is a surgical procedure to suspend the vagina from the front of the tail bone using a material like synthetic mesh or native tissue. Doc. 91-16 at 4. On November 9, 2011, Mrs. Crowe reported vaginal spotting and pain. Mrs. Crowe allegedly asked Dr. Brown if her TVT-O was causing her vaginal pain, groin pain, and stomach pain and allegedly asked for the name of the manufacturer of the mesh. Dr. Brown discussed the Prolift mesh's FDA advisory in detail. Doc. 91-18 at 2. On May 24, 2012, Mrs. Crowe visited Dr. Brown concerning her continued lower abdominal pain and allegedly asked, “Does the mesh have anything to do with her pain and what if you release it? [D]oes it have metal in it?” Doc. 91-19 at 2. Dr. Brown noted that surgery for mesh release may cause more pain for now. On June 29, 2012, Mrs. Crowe returned to Dr. Brown and reported she was still experiencing abdominal pain. During the examination Dr. Brown noted “pain on sacrum around sacral nerves no vaginal pain on mesh etc. can't even feel mesh.” Doc. 92-12 at 2. Dr. Brown recommended that Mrs. Crowe consider visiting Dr. West or Dr. Leslie Rush, a physical medicine and rehab specialist, to evaluate her sacral nerves and numbness. Id. at 4.
On July 11, 2012, Dr. Brown performed a hysterosonogram, a minimally invasive procedure to visualize the inside of the uterus with ultrasound, for Mrs. Crowe. Following the hysterosonogram, Mrs. Crowe experienced a lot of bleeding after tissue samples were obtained, which she allegedly attributes to the mesh. Doc. 92-8 at 12. On July 24, 2012, Mrs. Crowe and Dr. Brown discussed the results from her hysterosonogram. Dr. Brown noted that Mrs. Crowe's vaginal bleeding had stopped and recommended that she visit a gastrointestinal doctor for her continued abdominal pain. Doc. 92-13 at 2. Dr. Brown also informed Mrs. Crowe that she had
pelvic inflammatory disease and pelvic inflammation and recommended that she undergo a hysterectomy. On September 27, 2012, Mrs. Crowe presented to Dr. Brown's office with complaints of pelvic pain and adhesions. Dr. Brown noted that “pt here for pre op laparoscopic Supra Cervical Hysterectomy, Revision of Anterior Prolift.” Doc. 91-21 at 2. Accordingly, on October 8, 2012, Dr. Brown performed the following surgical procedures on Mrs. Crowe: 1) Laparoscopic supracervical hysterectomy; 2) Bilateral salpingo-oophorectomy (a surgery to remove the fallopian tubes and ovaries); and 3) Cystoscopy with release of left deep anterior arm of the anterior Prolift. Doc. 91-23 at 2. According to the operative report, under “Description of Procedure” it states the anterior arm of the Prolift was completely cut, and under “Indications for Surgery” further states Mrs. Crowe had been continuing conservative management over the last year or so and that Dr. Brown discussed options in detail, and though not sure that the mesh is the etiology of Mrs. Crowe's pain, she wished to proceed. Id. at 2-3. According to Dr. Brown, when mesh becomes tight in a certain area, that does not necessarily indicate there's a problem with the actual mesh itself and does not indicate that the mesh became tight because of anything directly related to the mesh itself or any properties of the mesh. Doc. 92-2 at 16. There can be several factors that can influence whether or not the mesh becomes tighter, including if a patient has a vaginal atrophy. Id. Furthermore, Dr. Brown states that some contracture of the mesh over time is expected. On November 15, 2012, Mrs. Crowe returned to Dr. Brown's office for her postoperative evaluation. Mrs. Crowe complained of vaginal tenderness and Dr. Brown did not note any abnormalities following an examination. In the “Disposition” section of the record for this visit, Dr. Brown noted that Mrs. Crowe's MRI showed encasement of the left anterior S1 nerve root. Doc. 92-15 at 3.
On February 28, 2014, Mrs. Crowe visited Dr. Douglas Pahl at the Hughston Clinic and reported predominant left leg pain and back pain which she experienced for about four years and described as being radiating. Doc. 92-16 at 4. After reviewing the X-rays with Mrs. Crowe and Mr. Crowe, Dr. Pahl recommended a selective nerve root block and if that did not work that she consider undergoing lumbar fusion surgery. Id. at 6. Mrs. Crowe continued to experience leg and back pain. In July 2014, after discussing her symptoms and the findings on her MRI and discogram with Dr. Fredy Martinez, Mrs. Crowe decided to proceed with the spinal fusion surgery. Doc. 9217 at 6. On August 29, 2014, Mrs. Crowe underwent lumbar fusion surgery performed by Dr. Pahl at...
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