Gutierrez v. Ethicon, Inc.

• Decision Date: 23 April 2021
• Docket Number: Case No. 5:20-cv-00093-RCL
• Citation: 535 F.Supp.3d 608
• Parties: Debra GUTIERREZ and Raymond Gutierrez, Plaintiffs, v. ETHICON, INC. and Johnson & Johnson, Defendants.
• Court: U.S. District Court — Western District of Texas

535 F.Supp.3d 608

Debra GUTIERREZ and Raymond Gutierrez, Plaintiffs,

v.ETHICON, INC. and Johnson & Johnson, Defendants.

Case No. 5:20-cv-00093-RCL

United States District Court, W.D. Texas, San Antonio Division.

Signed April 23, 2021

Paul L. Sadler, Sadler & Sadler, San Antonio, TX, for Plaintiffs.

Anita Modak-Truran, Butler Snow LLP, Nashville, TN, Christopher R. Cowan, Butler Snow LLP, Katherine Ann Fillmore, Duane Morris LLP, Paige Arnette Amstutz, Stephen E. McConnico, Scott, Douglass & McConnico, LLP, Austin, TX, for Defendants.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, U.S. DISTRICT JUDGE

In July 2007, a physician surgically implanted a polypropylene mesh device called a "TVT-O" into the thighs and vagina of the co-plaintiff, Debra Gutierrez, to mitigate her stress urinary incontinence

("SUI"). Opp'n at 2, 36, ECF No. 50. Defendant Ethicon, a division of defendant Johnson & Johnson, developed the TVT-O and trained and advised physicians about its use. Id. at 1, 31. Though the defendants marketed the device as safe and effective, Mrs. Gutierrez experienced serious complications. The TVT-O, she says, damaged her nerves, eroded her vaginal wall, failed to mitigate her SUI, leached chemicals into her body, and scraped her husband's penis during intercourse. Id. at 6-10. Given the other TVT-O recipients reporting similar issues, the Judicial Panel on Multidistrict Litigation consolidated extant suits into the U.S. District Court for the Southern District of West Virginia ("SDWV") for management as multidistrict litigation ("MDL"). The SDWV also invited eligible plaintiffs to "direct file" complaints there for later transfer to the otherwise-proper jurisdiction. Mrs. Gutierrez direct-filed in January 2014. See Short Form Complaint, ECF No. 1. After managing pre-trial discovery, the MDL court then transferred Mrs. Gutierrez's case here in January 2020. Notice of Transfer, ECF No. 35. The parties agreed that some of Mrs. Gutierrez's original claims should be dismissed, so the Court entered partial summary judgment for the defendants on those claims in February 2020. Order, ECF No. 39. The defendants now move for summary judgment on the plaintiffs’ remaining claims.¹ Mot., ECF No. 49. They argue, first, that those claims were untimely filed, and second, that even if timely, the defendants are still entitled to summary judgment. Id. at 1–2. Though the Court holds that genuine factual issues persist regarding the claims’ timeliness, it concludes that the defendants are still entitled to summary judgment on all them. Thus, the Court will GRANT the defendants’ motion for summary judgment.

I. BACKGROUND

Co-plaintiff Debra Gutierrez has long suffered from SUI—"the involuntary leakage of urine during moments of physical activity that increase[ ] abdominal pressure, such as coughing, sneezing, laughing, or exercise." Opp'n at 2, ECF No. 50.² SUI is relatively common among women and "may be treated non-surgically or surgically." Id. In July 2007, Mrs. Gutierrez opted for the latter approach. Id. at 36. She had her gynecologist, Dr. Alan Braid, implant an Ethicon-made TVT-O device into her thighs and vagina to address her SUI. As she describes the procedure,

The [TVT-O] mesh (which looks much like a window screen) [is] placed into the non-sterile vagina and placed under the urethra. An incision is made below the urethra meatus inside the vagina. The surgeon then dissects/tunnels into the obturator

foramen, which is described as an anatomical spot in the pelvis, and then through the thighs of the woman for placement of supports. The supports also made of the mesh are tunneled through the thighs and are used to pull the sling into place under the urethra. These supports through the thighs are then cut just below the surface of the skin and the incisions in the thighs are closed[,] leaving the mesh in the vagina and the thighs. Essentially, the design entails taking a sterilized product, placing

it through the unsterilized vagina[,] and then pulling two supports through the sterilized thighs. The mesh[,] with its window-screen or strainer-appearing construction[,] is intended to be permanently placed in the woman's body.

Id. at 2.

After the device was so placed into Mrs. Gutierrez, she appeared to heal normally. Id. at 8. She reported that "sexual intercourse at the time was not painful for her" and that her only side effect was difficulty inserting a tampon. Id. "She believed" that issue, though, "was just part of the healing process." Id. Otherwise, "that was it." Id.

Unfortunately, Mrs. Gutierrez eventually noticed issues developing with her TVT-O. In the first year after its implantation, her husband reported that he could feel something "sticking [his] penis" during sex. Id. at 7. It turned out that portions of TVT-O mesh were "extruding" into Mrs. Gutierrez's vagina. Id. Dr. Braid understood "this to be a known complication," however, "that was easily resolved by simply cutting off" the small piece of extruded mesh. Id. Thus, on April 4, 2008, Dr. Braid performed a brief, twenty-five-minute surgery to remove the mesh "sticking out of the vagina mucosa." Id. Mrs. Gutierrez recalled Dr. Braid telling her that he "just [needed to] go in there and snip it off and you'll be fine." Id. at 7 (citing Gutierrez Dep. at 88:18-21). Follow-up visits with Dr. Braid seemed to confirm that "everything went well," and she was then "feeling fine." Id. (citing Gutierrez Dep. at 95:2-7; 98:10-17).

Mrs. Gutierrez continued to see Dr. Braid for follow-up visits until 2010 or 2012.³ In those annual visits after her 2008 revision surgery, she began to report new concerns to Dr. Braid. Id. at 8. Her SUI eventually recurred, and she noted "pain in her pelvic region and back." Id. Mr. Gutierrez also claimed that Mrs. Gutierrez did not "feel the same" during sex. Id. Yet Dr. Braid informed Mrs. Gutierrez that her "tests and [ ] exams were normal," that she was "healthy," and that her pains were simply age-related. Id. (citing Gutierrez Dep. at 106:18-23). Dr. Braid also encouraged Mrs. Gutierrez to remind her husband that "he was not having sex with a 20 year old anymore" and that she was not a "spring chicken." Id. at 9 (citing Gutierrez Dep. at 107:22–108:2). Because Mrs. Gutierrez has had six children, she "figured [that Dr. Braid] was right" and that her pains came from age and childbirth, rather than the TVT-O. Id.

Some time in early January 2014, however, Mrs. Gutierrez says she saw "a commercial about the mesh product" and the related lawsuits. Id. (citing Gutierrez Dep. at 116:22–117:12). "[A]s soon as she saw the commercial," she "knew that those were [her] symptoms," and thus she realized that she might have a legal claim. Gutierrez Dep. at 118:12-15, ECF No. 50-8. She contacted plaintiffs’ counsel shortly after, and together they filed the complaint in the MDL court that was ultimately transferred to this jurisdiction. Opp'n at 9, ECF No. 50.

Though Mrs. Gutierrez had thrown her hat into the MDL ring by early 2014, she continued to seek medical advice about resolving her ongoing medical issues. Id. After Dr. Braid retired, Mrs. Gutierrez began to see a new gynecologist, Dr. James Lovell. Gutierrez Dep. at 108:15-20, ECF No. 50-8. She hoped to get "a second opinion" from Dr. Lovell about the cause of her symptoms. Id. In particular, Mr. Gutierrez began to report around July or August 2014 that he could feel "something sharp ... like needle pricks" in his penis during sex, and Mrs. Gutierrez continued to feel pain. Id. at 115:11-17. Dr. Lovell examined Mrs. Gutierrez's vagina but "said he couldn't feel anything." Id. at 116:9. Mrs. Gutierrez recalled him recommending no other "procedure or treatment" for the issues, and he seemed to concur with Dr. Braid that Mrs. Gutierrez was healthy. Id. at 117:18–118:8. He reiterated that her husband's complaints about her vagina likely stemmed from her six childbirths, and he suggested that they "use some lubricant." Id. at 118:1–8.

During a follow-up visit in November, Dr. Lovell at last deduced the source of Mr. Gutierrez's complaints: pieces of mesh visibly protruding into Mrs. Gutierrez's vagina. Id. at 119:9-11. (Mrs. Gutierrez, too, reported feeling "something protruding out of there." Id. at 119:7.) Dr. Lovell recalled using a hemostat to latch onto the exposed mesh, which he described as blue in color and like "a whisker." Lovell Dep. at 38:2-4; 39:8, ECF No. 50-9. Dr. Lovell told Mrs. Gutierrez that another revision surgery "should be an easy fix" that could be done "here at the office," but he let Mrs. Gutierrez go home and "th[ink] about it." Gutierrez Dep. at 119:10-11, ECF No. 50-8; Lovell Dep. at 40:6-9, ECF No. 50-9. She returned in December, and Dr. Lovell excised the protruding mesh. Lovell Dep. at 39:25–40:21, ECF No. 50-9.

Still, however, Mrs. Gutierrez's problems persisted. She continued to report pain in her pelvis and back. But Dr. Lovell told Mrs. Gutierrez that "he thought that he [had] gotten the piece of the mesh or the stitches out that were causing [her] problems." Gutierrez Dep. at 121:21-24, ECF No. 50-8. So Mrs. Gutierrez sought a third opinion from another gynecologist, Dr. Carlos Cardenas. Opp'n at 9, ECF No. 50. Dr. Cardenas opined that Mrs. Gutierrez "might be experiencing pain because [she] might be menopausal." Gutierrez Dep. at 125:8-9, ECF No. 50-8. Thinking that "maybe [Mrs. Gutierrez's] hormones are out of whack," Dr. Cardenas suggested various tests and, eventually, hormone replacement therapy. Id. at 125:9-19. Mrs. Gutierrez apparently began hormone treatment, but she says that her symptoms never improved. Id. at 125:22-25.

In 2019, Mrs. Gutierrez was then "examined at the University Health System Clinic," which referred her to yet a fourth physician, Dr. Sylvia Botros-Brey. Opp'n at 10, ECF No. 50. In another procedure in December 2019, Dr. Brey removed as much of the mesh device from Mrs. Gutierrez as was possible. Id. Dr. Brey explained that "one side" of the vaginal...