Hovey v. Cook Inc.

• Decision Date: 01 April 2015
• Docket Number: Civil Action No. 2:13–cv–18900.
• Citation: 97 F.Supp.3d 836
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Mary HOVEY, Plaintiff, v. COOK INCORPORATED, et al., Defendants.

97 F.Supp.3d 836

Mary HOVEY, Plaintiff

v.COOK INCORPORATED, et al., Defendants.

Civil Action No. 2:13–cv–18900.

United States District Court, S.D. West Virginia.

Signed April 1, 2015.

Benjamin H. Anderson, Anderson Law Offices, Cleveland, OH, Erin K. Copeland, Fibich Leebron Copeland Briggs Josephson, Houston, TX, for Plaintiff.

Dale W. Eikenberry, Douglas B. King, James M. Boyers, Jennifer Lynn Schuster, Wooden & McLaughlin, Indianapolis, IN, for Defendants.

MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN, District Judge.

Pending before this court is the defendants' Motion for Summary Judgment (“Motion”) [Docket 34]. For reasons explained below, the Motion is DENIED.

I. Background

This case against Cook Inc., Cook Biotech, Inc., and Cook Medical, Inc. (collectively “Cook”) 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”).¹ In the seven MDLs, there are more than 70,000 cases currently pending, approximately 350 of which are in the Cook MDL, MDL 2440. The instant case was selected as a bellwether case to be tried before a jury on June 8, 2015. (See Pretrial Order # 52, In re: Cook Med. Inc. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12–cv–2440, entered Jan. 13, 2015, available at http://www.wvsd.uscourts.gov/MDL/2440/orders.html).

On May 15, 2003, the plaintiff, Mary Hovey, was implanted with the Stratasis Urethral Sling (“Stratasis”) manufactured by Cook to treat SUI. (Compl. [Docket 1] ¶ 27). Dr. Robert May Jr. performed Ms. Hovey's surgery at Christus Spohn Hospital Shoreline in Corpus Christi, Texas. (Id.; Pl.'s Br. in Opp. to Cook's Mot. for Summ. J. (“Pl.'s Br. in Opp.”) [Docket 47], at 1). About seven days after her surgery, Ms. Hovey returned to Dr. May for a follow-up examination, and he determined that her surgery went well. (May Dep. [Docket 47–2], at 64:22–65:4). Then, on May 28, 2003, Ms. Hovey visited the emergency room with complaints of fever and pain at the site of the surgical incision. (Hovey Dep. [Docket 47–1], at 29:18–22). Dr. May discovered an abscess near the incision that, in his opinion, was likely the cause of her pain. (May Dep. [Docket 47–2], at 68:17–19). Dr. May discussed with Ms. Hovey several options for handling the pain, including drainage of the abscess and removing the infection surrounding the sling, if any. (Id. at 72:22–73:2). Ms. Hovey opted for the former, less invasive procedure. (Id. at 73:25–74:2). Therefore, Dr. May drained the abscess, and Ms. Hovey was discharged on June 4, 2003. (Id. at 74:25–75:1). Since this procedure, Ms. Hovey has experienced renewed incontinence, (id. at 36:7–19), urinary tract infections, (id. at 44:10–22), pain with intercourse, (id. at 19:3–7), and pain around the abscesswound, (id. at 46:22–25). None of the doctors that Ms. Hovey saw about these problems indicated to her that the Stratasis could be the cause. (Id. at 47:20–24). According to Ms. Hovey, she did not become aware that the Stratasis could be responsible for her problems until February 4, 2013, when she is transvaginal mesh on the Internet. (Hovey Aff. [Docket 47–3], at 1). She then contacted an attorney and filed suit on July 10, 2013. (Id. ).

Ms. Hovey claims that as a result of the implantation of the Stratasis, she has suffered “extreme pain, tenderness, fever, inflammatory reaction, severe infection, abscess formation, pain with voiding, fibrosis, wound dehiscence, scarring, recurrence, bleeding, and dyspareunia.” (Pl. Fact Sheet [Docket 51–1], at 9–10). She brings the following claims against Cook: failure to warn under the Product Liability Act, strict liability, negligence, negligent misrepresentation, negligent infliction of emotional distress, breach of express warranty, breach of implied warranty, violation of consumer protection laws, gross negligence, unjust enrichment, and punitive damages. (Compl. [Docket 1] ¶¶ 44–133). In the instant motion, Cook argues that each of the plaintiff's claims is barred by Texas's statute of limitations and preempted by the Food, Drug, and Cosmetic Act (“FDCA”). (See Cook's Br. in Supp. of Mot. for Summ. J. (“Cook's Br. in Supp.”) [Docket 35], at 1). Consequently, Cook asks this court to grant summary judgment in favor of Cook and dismiss Ms. Hovey's case in its entirety.

II. Legal Standards

A. Summary Judgment

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2505. 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505. 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, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

B. Choice of Law

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 based on the statute of limitations, 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) (“Where a transferee court presides over several diversity actions consolidated under the multidistrict rules, the choice of law rules of each jurisdiction in which the transferred actions were originally filed must be applied.”); In re Air Crash Disaster Near Chi., Ill., 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 (S.D.W.Va. May 25, 2010). However, if a plaintiff files her claim directly into the MDL in the Southern District of West Virginia, as Ms. Hovey 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) (“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.”). Ms. Hovey received the Stratasis 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 plaintiff's claims. In tort actions, Texas adheres to the Restatement (Second) of Conflict of Laws. Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex.1979). Under Section 145 of the Second Restatement, the court must apply the law of the state with the most “significant relationship to the occurrence and the parties.” Restatement (Second) of Conflicts of Laws § 145 (1971). Here, Ms. Hovey resides in Texas, and the product was implanted in Texas. Thus, I apply Texas's substantive law to this case, beginning with Cook's statute-of-limitations argument and then turning to Cook's preemption argument.

III. Statute of Limitations

The plaintiff's personal injury claims—strict liability, negligence, and breach of warranties—are governed by a two-year statute of limitations. Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (2013). The plaintiff's claim for violation of the consumer protection laws, apparently asserted under Texas's Deceptive Trade Practices–Consumer Protection Act (“DTPA”), is also subject to a two-year statute of limitations. Tex. Bus. & Com.Code Ann. § 17.565 (2013).² Although the limitations period is the same, different rules apply to determining the time of accrual for these claims, and therefore, I divide my analysis into two sections: (A) the plaintiff's personal injury claims and (B) the plaintiff's DTPA claims.

A. Personal Injury Claims

As stated above, in Texas, a personal injury action must be filed “not later than two years after the day the cause of action accrues.” Tex....