Gardner v. Ethicon, Inc.
| Decision Date | 27 August 2020 |
| Docket Number | C/A No. 4:20-cv-00067-SAL |
| Court | U.S. District Court — District of South Carolina |
| Parties | Jennifer Gardner, Plaintiff, v. Ethicon, Inc. and Johnson & Johnson, Defendants. |
This matter is before the court on a Motion to Substitute Expert Witness, ECF No. 74, filed by Plaintiff Jennifer Gardner ("Plaintiff") and a Motion for Summary Judgment, ECF No. 76, filed by Defendants Ethicon, Inc. and Johnson & Johnson ("Defendants"). For the reasons set forth below, the court denies both motions.
This is one of many products liability cases around the country arising from injuries allegedly caused by implantation of transvaginal surgical mesh. It came to this court on remand from the United States District Court for the Southern District of West Virginia multidistrict litigation ("MDL"), In re Ethicon, Inc., Pelvic Repair Systems Products Liability Litigation, 2:12-md-2327, after pretrial proceedings. [ECF Nos. 33, 40.]
Plaintiff in this case brought suit in the MDL on February 27, 2013, naming Ethicon, Inc. and Johnson & Johnson as Defendants. [ECF No. 1.] Her suit stems from a July 18, 2007 procedure in Lancaster, South Carolina during which she was implanted with a Prolift device and a TVT-SECUR ("TVT-S") for the treatment of pelvic organ prolapse and stress urinary incontinence. Id. Following the procedure, Plaintiff claims to have suffered "incontinence, infections, pelvic pain, vaginal pain and numbness in her right leg," as well as "exacerbated anxiety" and "embarrassment." [ECF No. 76-2 at p.6.] Because of the alleged "incontinence, infections, pelvic pain, vaginal pain and numbness in her right leg," Plaintiff underwent a revision procedure on August 28, 2009. Id. This lawsuit followed.
Following transfer from the MDL, on March 4, 2020, the court held a Rule 16 conference to discuss the status of the case and to create a schedule for the remainder of the case up to trial. [ECF No. 58.] The parties filed a joint stipulation to dismiss certain claims,1 and the court entered a consent amended scheduling order reflecting a date-certain trial to begin September 21, 2020. [ECF Nos. 61, 63.]
On April 21, 2020, Defendants filed a motion for leave to file a supplemental motion for summary judgment, and the court granted leave. [ECF Nos. 68, 75.] Defendants filed the supplemental motion on June 11, 2020. [ECF No. 76.] Plaintiff filed an opposition, ECF No. 78, and Defendants filed a reply, ECF No. 81. Accordingly, the supplemental motion for summary judgment is ripe for consideration by this court.
Additionally, three months after the Rule 16 conference, on June 5, 2020, Plaintiff filed a motion to substitute expert witness. [ECF No. 74.] Plaintiff seeks to substitute Dr. Daniel Elliott for Dr. Valdimir Iakovlev. Defendants opposed the motion, ECF No. 77, and the court held a hearing by videoconference on August 19, 2020, ECF No. 142. This matter is also ripe for consideration by this court.
There are several legal standards at issue here. To address Plaintiff's motion to substitute expert, the court considers two: Rule 16(b)(4), FRCP and Rule 37(c), FRCP.
When a party seeks to substitute an expert after the passing of the scheduling order deadline, courts apply "the standard for modifying a scheduling order set forth in Rule 16(b) of the Federal Rules of Civil Procedure." Donegan v. Enerco Grp., Inc./Mr. Heater, No. 3:18-CV-34, 2019 WL 1571283, at *2 (N.D. W. Va. Feb. 22, 2019) (citing In re Rail Freight Fuel Surcharge Antitrust Litigation, 75 F. Supp. 3d 94, 98 (D.D.C. 2014)). Rule 16(b) provides that "[a] schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4).
"Good cause requires the party seeking relief to show that the deadlines cannot reasonably be met despite the party's diligence" Cook v. Howard, 484 F. App'x 805, 815 (4th Cir. 2012) (internal citations and quotations omitted). It is "not [] satisfied if the district court concludes that the party seeking relief (or that party's attorney) has not acted diligently in compliance with the schedule." Id. Further, "the absence of prejudice to the opposing party is not equivalent to a showing of good cause." Adkisson v. Jacobs Eng'g Grp., Inc., No. 3:13-cv-505, 2018 WL 1248159, at *7 (E.D. Tenn. Mar. 9, 2018). "'[I]f the movant has not been diligent . . . then other factors—including the presence or absence of prejudice to the other party—generally will not be considered." Faulconer v. Centra Health, Inc., 808 F. App'x 148, 152 (4th Cir. 2020) (citation omitted).
In this District, "[w]ith respect to expert witness substitutions," courts have found "good cause for belated substitution where a party promptly informs the court that a previously identified expert cannot serve due to illness, injury, or other unanticipated event." Smith v. Reynolds Transp. Co., No. 3:11-cv-2728, 2013 WL 247714, at *3 n.4 (D.S.C. Jan. 23, 2013). Where there are "no facts suggesting either an unanticipated event . . . or prompt pursuit of relief," the court generally denies the late substitution. Id.
Rule 37(c) is an "automatic" discovery sanction. Fed. R. Civ. P. 37(c) advisory committee note, 1993 Amendment; see also Campbell v. United States, 470 F. App'x 153 (4th Cir. 2012). It has two exceptions: (1) when the failure to disclose is substantially justified and (2) when the nondisclosure is harmless. Southern States Rack and Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003).
In determining whether the nondisclosure is substantially justified or harmless, the Fourth Circuit suggests weighing the factors in the following five-factor test:
Id. at 597. The first four factors "relate mainly to the harmlessness exception, while the remaining factor—explanation for the nondisclosure—relates primarily to the substantial justification exception." Id. "The burden of establishing these [five] factors lies with the nondisclosing party." Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014).
Summary judgment is appropriate if a party "shows that there is no genuine dispute as to any material fact" and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party makes this threshold demonstration, the non-moving party may not rest upon mere allegations or denials averred in the pleading, but rather must, by affidavits or othermeans permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56; see also Celotex Corp., 477 U.S. at 323.
A party asserting that a fact is genuinely disputed must support the assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). A litigant is unable to "create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). "[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1996).
"In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. American Nat'l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996).
As noted above, there are two ripe motions present before the court: (1) Plaintiff's motion to substitute expert and (2) Defendant's motion for summary judgment. Because Defendants' motion for summary judgment could be dispositive of the case, the court addresses it first.
Defendants make one argument on summary judgment—Plaintiff's case-specific expert does not identify a reasonable alternative design to the Prolift or TVT-S that would have prevented or reduced Plaintiff's injuries. [ECF No. 76.] According to Defendants, this lack of case-specific testimony is fatal to Plaintiff's design defect claims. Id. In response, Plaintiff argues there issufficient evidence of a reasonable alternative design for both products at issue. [ECF No. 78-1.] Plaintiff relies on the testimony of her general experts in this regard. Id. As outlined below, the court concludes that South Carolina case law does not require case-specific expert testimony linking the reasonable alternative design directly to Plaintiff's injuries.
Plaintiff asserts both negligence and strict liability design defect claims against Defendants. A design defect claim is one of three defects a plaintiff in a products liability lawsuit can allege against a defendant in South Carolina. See Watson v. Ford Motor Co., 699 S.E.2d 169, 174 (S.C. 2010) () a manufacturing defect, 2) a warning defect, and 3) a design defect."). "When a design defect claim is made, a plaintiff alleges that the product at issue was...
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