Huskey v. Ethicon, Inc., Civil Action No. 2:12–cv–05201.

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtJOSEPH R. GOODWIN
Citation29 F.Supp.3d 736
PartiesJo HUSKEY, et al., Plaintiffs, v. ETHICON, INC., et al., Defendants.
Decision Date08 July 2014
Docket NumberCivil Action No. 2:12–cv–05201.

29 F.Supp.3d 736

Jo HUSKEY, et al., Plaintiffs,
ETHICON, INC., et al., Defendants.

Civil Action No. 2:12–cv–05201.

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

Signed July 8, 2014.

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Aleksandra M.S. Vold, Siprut, Corey G. Raines, Edward A. Wallace, Mark R. Miller, Michael H. Bowman, Timothy E. Jackson, Wexler Wallace, James B. Zouras, Stephan Zouras, Chicago, IL, Jeffrey M. Kuntz, Thomas P. Cartmell, Brian J. Madden, Diane K. Watkins, Wagstaff & Cartmell, Kansas City, MO, D. Renee Baggett, Daniel J. Thornburgh, Aylstock Witkin Kreis & Overholtz, Pensacola, FL, Fidelma L. Fitzpatrick, Michaela Shea McInnis, Robert J. McConnell, Motley Rice, Providence, RI, for Plaintiffs.

Christy D. Jones, William M. Gage, Butler Snow, Ridgeland, MS, David B. Thomas, Philip J. Combs, Susan M. Robinson, Thomas Combs & Spann, Charleston, WV, Kimberly C. Metzger, Nancy Menard Riddle, Ice Miller, Indianapolis, IN, Kari L. Sutherland, Butler Snow, Oxford, MS, Susanna Moore Moldoveanu, Butler Snow, Memphis, TN, for Defendants.

MEMORANDUM OPINION AND ORDER (Motions for Summary Judgment)

JOSEPH R. GOODWIN, District Judge.

Pending before the court are the defendants' Motion for Partial Summary Judgment [Docket 161], Motion for Partial Summary Judgment Based on Preemption of Certain Claims [Docket 178], Motion for Partial Summary Judgment on Punitive Damages [Docket 187], and Plaintiffs Jo and Allen Huskey's Motion for Partial Summary Judgment on Defendant Ethicon Inc.'s Separate Defenses [Docket 163]. For the reasons stated below, the Motion for Partial Summary Judgment [Docket 161] is GRANTED in part and DENIED in part, the Motion for Partial Summary Judgment Based on Preemption of Certain Claims [Docket 178] is DENIED, the Motion for Partial Summary Judgment on Punitive Damages [Docket 187] is DENIED, and Plaintiffs Jo and Allen Huskey's Motion for Partial Summary Judgment on Defendant Ethicon Inc.'s Separate Defenses [Docket 163] is GRANTED.

I. Background

This case is one of more than 60,000 that have been assigned to me by the Judicial Panel on Multidistrict Litigation in seven MDLs involving pelvic mesh products. Approximately 19,000 of these cases reside in the In re Ethicon, Inc. MDL, MDL No. 2327.

The device at issue in this case is the Gynecare TVT Obturator (“TVT–O”), manufactured by the defendants, Ethicon, Inc. and Johnson & Johnson, Inc. (collectively, “Ethicon”). The TVT–O is a medical device that includes a mechanism used to place a mesh tape, or sling, under the urethra to provide support to the urethra to treat stress urinary incontinence. (Mem. in Supp. of Mot. for Partial Summ. J. [Docket 162], at 1).

Before being implanted with the TVT–O, Ms. Huskey suffered from stress urinary incontinence which caused her to leak urine when she laughed, coughed, sneezed, exercised, or experienced abdominal pressure. ( See Byrkit Dep. [Docket 161–3], at 187:21–23; 189:3–6). Ms. Huskey initially

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utilized pelvic floor strengthening exercises to alleviate her symptoms. ( See Huskey Dep. [Docket 161–4], at 308:18–309:4; 309:22–310:4). When those exercises failed to fully remedy her stress urinary incontinence, she sought surgical treatment. ( See id. at 312:22–313:1).

Ms. Huskey's physician, Dr. Gretchen Byrkit, implanted the TVT–O device on February 23, 2011. ( See Statement of Undisputed Facts Regarding Jo Huskey's Medical History and Condition [Docket 215], at 5). After the surgery, Ms. Huskey experienced several complications, including erosion of the mesh and dyspareunia. ( See id. at 5–6). Ms. Huskey underwent a revision surgery with Dr. Sohail Siddique on November 18, 2011, which excised a portion of the TVT–O's mesh. ( See id. at 6–7). After her revision, Ms. Huskey's stress urinary incontinence symptoms returned, and she experienced constant pelvic and vaginal pain. ( See id. at 8).

Ms. Huskey and her husband, Allen Huskey, currently advance several claims against Ethicon, including negligence, strict liability for design defect, strict liability for failure to warn, strict liability for manufacturing defect, fraud, fraudulent concealment, constructive fraud, negligent misrepresentation, negligent infliction of emotional distress, breach of express and implied warranty, gross negligence, unjust enrichment, and violation of the Illinois Consumer Fraud Act, 815 Ill. Comp. Stat. 505/1 et seq. ( See Short Form Compl. [Docket 1], at 4–5).

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. 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, Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

B. Preemption

Federal preemption originates from the Constitution's Supremacy Clause. See

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U.S. Const. art. VI, cl. 2.1 In addressing a preemption issue, the court's first task is to determine whether Congress intended to preempt. See Cal. Fed. Savings & Loan Ass'n v. Guerra, 479 U.S. 272, 280–81, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987). Intent to preempt can manifest itself in three forms: field preemption, express preemption, and conflict preemption. See H & R Block E. Enters. v. Raskin, 591 F.3d 718, 722 (4th Cir.2010). Field preemption occurs when the “federal scheme of regulation of a defined field is so pervasive that Congress must have intended to leave no room for the states to supplement it[.]” City of Charleston, S.C. v. A Fisherman's Best, Inc., 310 F.3d 155, 169 (4th Cir.2002). Express preemption arises when “Congress expressly declares its intent to preempt state law.” Pinney v. Nokia, Inc., 402 F.3d 430, 453 (4th Cir.2005). Finally, conflict preemption occurs when “state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (internal quotation omitted). Conflict preemption can also arise when “compliance with both federal and state regulations is a physical impossibility[.]” Id. (internal quotation omitted).

Once Congress's intent to preempt is determined, the focus turns to the scope of that preemption. See Duvall v. Bristol–Myers–Squibb Co., 103 F.3d 324, 328 (4th Cir.1996). Two presumptions guide this inquiry. See id. First, “ ‘the purpose of Congress is the ultimate touchstone’ in every pre-emption case.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963)). Second, a court starts “with the basic assumption that Congress did not intend to displace state law.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). “This presumption is strongest when Congress legislates ‘in a field which the States have traditionally occupied.’ ” S. Blasting Servs., Inc. v. Wilkes Cnty., N.C., 288 F.3d 584, 590 (4th Cir.2002) (quoting Lohr, 518 U.S. at 485, 116 S.Ct. 2240).

C. Choice of Law

The parties agree that Illinois's choice-of-law rules apply in this case. Illinois has adopted the most-significant-relationship test as enumerated in Restatement (Second) of Conflict of Laws. See Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 316 Ill.Dec. 505, 879 N.E.2d 893, 901 (2007); Gregory v. Beazer E., 384 Ill.App.3d 178, 322 Ill.Dec. 926, 892 N.E.2d 563, 578 (2008). Under that test, courts should consider the following factors: (1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation and business of the parties, and (4) the place where the relationship, if any, between the parties is centered. See Townsend, 316 Ill.Dec. 505, 879 N.E.2d at 901 (citing Restatement (Second) of Conflict of Laws § 145(2), at 414 (1971)). This choice of law analysis applies to each individual issue in a case. See Townsend, 316 Ill.Dec. 505, 879 N.E.2d at 901; Gregory, 322 Ill.Dec. 926, 892 N.E.2d at 578. Here, the surgery to implant the device and any alleged injuries to the plaintiffs occurred in Illinois. Therefore, for the plaintiffs' substantive claims, I apply the law of Illinois.

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The analysis is different for punitive damages. Illinois courts permit...

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