Holcomb v. Bos. Scientific Corp.
| Decision Date | 03 May 2016 |
| Docket Number | Civil Action No. 2:12-cv-06302 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | REGINA HOLCOMB AND JEREMY STEPHENSON, Plaintiffs, v. BOSTON SCIENTIFIC CORP., Defendant. |
(Defendant's Motion for Summary Judgment)
Pending before the court is Defendant Boston Scientific Corporation's Motion for Summary Judgment and Memorandum in Support Against Plaintiffs Regina Holcomb and Jeremy Stephenson ("Motion") [Docket 38]. As set forth below, the defendant's Motion is GRANTED IN PART with respect to the plaintiffs' claims of strict liability for manufacturing defect, strict liability for failure to warn, negligent manufacturing, negligent failure to warn, breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, and loss of consortium. The defendant's Motion is DENIED IN PART with respect to the plaintiffs' claims of strict liability for design defect and negligent design.
This 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 75,000 cases currently pending, approximately 19,000 of which are in the Boston Scientific Corp. ("BSC") MDL, MDL 2326. In an effort to efficiently and effectively manage this massive MDL, I decided to conduct pretrial discovery and motions practice on an individualized basis so that once a case is trial-ready (that is, after the court has ruled on all Daubert motions and summary judgment motions, among other things), it can then be promptly transferred or remanded to the appropriate district for trial. To this end, I ordered the plaintiffs and defendant to each select 50 cases, which would then become part of a "wave" of cases to be prepared for trial and, if necessary, remanded. (See Pretrial Order # 65, In re Boston Scientific Corp. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-002326, entered Dec. 19, 2013, available at http://www.wvsd.uscourts.gov/MDL/boston/orders.html). This selection process was completed twice, creating two waves of 100 cases, Wave 1 and Wave 2. The plaintiffs' case was selected as a Wave 1 case by the plaintiffs.
On February 17, 2010, Ms. Holcomb was surgically implanted with the Uphold Vaginal Support System (the "Uphold"), a product manufactured by BSC to treat POP. (See Mot. [Docket 38], at 2). Dr. William Brown implanted the product at Trinity Mother Frances Hospital in Tyler, Texas. (Am. Short Form Compl. [Docket 7], at 4). Ms. Holcomb claims that as a result of implantation of the Uphold, she has experienced multiple complications. She brings the following claims against BSC: strict liability for manufacturing defect, failure to warn, and design defect; negligence; breach of express and implied warranties; and punitive damages. (Id. at 4-5). Mr. Stephenson brings a claim for loss of consortium. (Id.).
To obtain summary judgment, the moving party must show that there is no genuine dispute 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. 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 Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997).
Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in MDL cases. The choice of law for these pretrial motions depends on whether they concern federal or state law:
When analyzing questions of federal law, the transferee court should apply the law of the circuit in which it is located. When considering questions of state law, however, the transferee court must apply the state law that would have applied to the individual cases had they not been transferred for consolidation.
In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (internal citations omitted). To determine the applicable state law for a dispositive motion,I generally refer to the choice-of-law rules of the jurisdiction where the plaintiff first filed her claim. See In re Air Disaster at Ramstein Air Base, Ger., 81 F.3d 570, 576 (5th Cir. 1996) (); In re Air Crash Disaster Near Chi., III., 644 F.2d 594, 610 (7th Cir. 1981); In re Digitek Prods. Liab. Litig., MDL No. 2:08-md-01968, 2010 WL 2102330, at *7 .
If a plaintiff files her claim directly into the MDL in the Southern District of West Virginia, however, as Ms. Holcomb did in this case, I consult the choice-of-law rules of the state in which the plaintiff was implanted with the product. See Sanchez v. Boston Scientific Corp., 2:12-cv-05762, 2014 WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014) (). Ms. Holcomb received the Uphold implantation surgery in Texas. Thus, the choice-of-law principles of Texas guide this court's choice-of-law analysis.
The parties agree, as does this court, that these principles compel application of Texas law to the plaintiffs' claims. In tort actions, Texas adheres to the Restatement (Second) of Conflict of Laws (Am. Law Inst. 1971). Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex. 1979). Under section 145 of the Restatement (Second) of Conflict of Laws, the court must apply the law of the state with the most "significant relationship to the occurrence and the parties." Here, the plaintiffs reside in Texas, and the product was implanted in Texas. Thus, I apply Texas's substantive law to this case.
BSC first argues that Ms. Holcomb's personal injury claims are barred by Texas's statute of limitations. Under Texas law, the statute of limitations for personal injury actions is two years. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). Accordingly, a plaintiff must file her claims within two years of the date the alleged wrongful act caused her injury. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998). This period, however, may be tolled by application of the discovery rule. The discovery rule tolls accrual "until a plaintiff knows or, through the exercise of reasonable care and diligence, should have known of the wrongful act and resulting injury." Id. (internal quotations and citation omitted); see also Woodruff v. A.H. Robbins Co., 742 F.2d 228, 230 (5th Cir. 1984) ().
Ms. Holcomb filed this action on October 8, 2012. . BSC sets forth two alternative dates on which it alleges the cause of action accrued and the two year limitations period began to run. The first date is April 29, 2010, when Ms. Holcomb first experienced pain with intercourse and attributed it to "something with the surgery." (Mem. in Supp. [Docket 38], at 8). The second date is May 11, 2010, when Ms. Holcomb had the Uphold partially removed. (Id.). Viewing the facts in the light most favorable to the nonmovant, I FIND genuine disputes of material fact as to both dates.
First, with regard to her dyspareunia, Ms. Holcomb testified that she "had that pain, but [she] didn't know what it was from," and she "thought it was due to something with surgery." (Holcomb Dep. [Docket 58-3], at 86:12-16). A reasonable juror could find that Ms. Holcombbelieved the implantation surgery itself—and not the mesh specifically—caused her injuries.
Next, a reasonable jury could also find that the cause of action did not accrue when the Uphold was partially removed in May 2010. As Ms. Holcomb points out, in addition to removing a portion of the mesh, Dr. Boreham also excised twisted vaginal mucosa and dimpling on the perineum that were causing her pain. (Boreham Dep. [Docket 58-7], at 57:21-58:10). Thus, a reasonable juror could conclude that Ms. Holcomb believed one of the other procedures—and not the mesh specifically—caused her injuries.
In the end, this determination is a fact question left to the...
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