Imhoff v. Ethicon, Inc.
| Decision Date | 15 July 2022 |
| Docket Number | 3:20-cv-00380-AR |
| Parties | LAURIE M. IMHOFF, and ROBERT IMHOFF, Plaintiffs, v. ETHICON, Inc., and JOHNSON & JOHNSON, Defendants. |
| Court | U.S. District Court — District of Oregon |
FINDINGS AND RECOMMENDATION
FILED UNDER PROTECTIVE ORDER
Plaintiffs Laurie M. Imhoff (Imhoff) and Robert Imhoff[1] bring this product liability action against defendants Ethicon, Inc. and Johnson & Johnson, alleging that Imhoff was injured by the surgical implantation of defendants' Gynemesh PS mesh for treatment of her pelvic organ prolapse (POP). Defendants move for partial summary judgment.[2] As the court explains, defendants' motion should be granted in part and denied in part.
Imhoff was diagnosed with POP (, “incomplete uterovaginal pelvic relaxation” and “paravaginal defect”), which is relaxation or trauma of pelvic tissues resulting in their prolapse through the vaginal opening. Decl. Jeanne F. Loftis Supp. Mot. Partial Summ. J. (Loftis Decl.) Ex. 1 at 1, ECF No. 82-1; Ex. 3 at 12:15-17 , ECF No. 82-3. On June 9, 2010, Dr. John A. Murphy performed surgery on Imhoff-a supracervical abdominal hysterectomy, a retropubic urethropexy using the Burch technique, and an abdominal sacral colpopexy. Id. For the abdominal sacral colpopexy, which involves suturing cervical tissues and the presacral ligament, Dr. Murphy used Ethicon's Gynemesh PS mesh. Ex. 1 at 2, ECF No. 82-1; see also Murphy Dep. at 8:5-9.
After surgery, Imhoff continued to experience chronic deep pain with intercourse, stress urinary incontinence (SUI), and abdominal wall pain. Loftis Decl. Ex. 1 at 3; Murphy Dep 34:24-35:4. On March 7, 2012, Dr. James M. Carlson, assisted by Dr. Murphy, implanted a retropubic mesh sling manufactured by Bard and performed cystocele repair, rectocele repair, and a diagnostic laparoscopy. Id. at 4.
On June 11, 2014, Dr. Connie DiMarco examined Imhoff for progressive pain, which ranged from dull aches to severe stabbing pain two to three times a day. Resp. Mot. Summ. J. (Resp.) Ex. 3 at 13:2-12 (attaching Dep. Connie DiMarco (Sept. 24, 2018) (DiMarco Dep.)), ECF No. 84-3. Imhoff informed Dr. DiMarco that the pain was chiefly rectal and that manipulation of the cervix also reproduced the pain. DiMarco Dep. at 13:7-10. During Dr. DiMarco's vaginal examination of Imhoff, she could reproduce Imhoff's pain by manipulating the posterior mesh palpable below the vaginal mucosa, but not by palpating the cervix. DiMarco Dep. at 16:10-14. Dr. DiMarco diagnosed pelvic pain and sacral colpopexy mesh contracture. Loftis Decl. Ex. 1 at 17.
On August 20, 2014, Dr. DiMarco, assisted by Dr. Thomas Bascom, performed another surgery-an operation to excise and revise the posterior leaf of the sacral colpopexy Gynemesh PS mesh. Id. Drs. DiMarco and Bascom removed multiple adhesions to the mesh, including cul-de-sac adhesions creating peritoneal fluid filled cysts, a large enterocele sac, and sigmoid adhesions. Id. at 18. The removed portions of the mesh and tissue were sent to pathology for examination. Id. Dr. Bascom's surgery notes reflect that the “balled up segment” of posterior mesh was removed, “along with some permanent sutures.” Id. at 15. Postoperatively, Imhoff denied recurrence of sharp vaginal pain following excision of the mesh. DiMarco Dep. 44:13-19.
On September 14, 2018, Imhoff returned to Dr. DiMarco, complaining of “intermittent sharp pain and heaviness in the vagina, exacerbated by physical activity.” Loftis Decl. Ex. 1 at 21. Dr. DiMarco found no evidence of mesh erosion on the anterior or posterior walls, found the vagina and cervix “fairly well supported supine,” and a grade 2 cystocele and grade 1-2 cervical descensus while standing with tenderness to palpation. Id. at 23. Imhoff was encouraged to avoid heavy lifting, prevent constipation, and perform pelvic strengthening exercises. Id. at 24.
On February 26, 2020, Imhoff was referred for pelvic floor physical therapy. Loftis Decl. Ex. 6 at 3. On July 23, 2020, Imhoff saw Dr. Jones-Mitchell, reporting heaviness in her pelvic floor and pain in the rectal area that worsened with strenuous activity and prolonged standing. Id. at 8. Dr. Jones-Mitchell found no mesh exposure on examination, believed the pain was linked to scar tissue, and recommended Imhoff continue pelvic floor physical therapy, and prescribed vaginal estrogen and vaginal valium. Id.
On September 25, 2013, Imhoff filed this action in the Multi-District Litigation (MDL), In Re Ethicon, Inc., Pelvic Repair System Products Liability Litigation, in U.S. District Court for the Southern District of West Virginia, assigned to District Judge Joseph R. Goodwin. Short Form Compl., ECF No. 1. Imhoff alleges: negligence (Count I); strict liability - manufacturing defect (Count II); strict liability - failure to warn (Count III); strict liability - defective product (Count IV); strict liability - design-defect (Count V); common law fraud (Count VI); fraudulent concealment (Count VII); constructive fraud (Count VIII); negligent misrepresentation (Count IX); negligent infliction of emotional distress (Count X); breach of express warranty (Count XI); breach of implied warranty (Count XII); violation of consumer protection laws (Count XIII); gross negligence (Count XIV); unjust enrichment (Count XV); punitive damages (Count XVII); and discovery rule and tolling (Count XVIII). Id.
On March 3, 2020, this action was transferred from the MDL to the District Court of Oregon and assigned to Magistrate Judge John V. Acosta. ECF No. 50. On September 25, 2020, the parties stipulated to the dismissal of Counts II, IV, VIII, XI, XII, XIII, and XV, and agreed that Counts I, III, V, VI, VII, IX, X, XIV, XVI, XVII, and XVIII remain pending. Stip. Dismissal, ECF No. 71. On March 23, 2022, this action was reassigned to this court.
Defendants move for partial summary judgment on Imhoff's claims for strict liability design-defect and negligence premised on design-defect (Counts V and I); common law fraud and fraudulent concealment premised on omissions (Counts VI and VII); negligent misrepresentation (Count IX); punitive damages (Count XVII); and discovery rule and tolling (Count XVIII).
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A party seeking summary judgment bears the burden of establishing the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows no issue of material fact exists, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. A party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, on unsupported conjecture, or on conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Summary judgment should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
In determining whether to grant summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014); Hernandez, 343 F.3d at 1112. All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). However, deference to the nonmoving party has limits. The nonmoving party must set forth “specific facts showing a genuine issue for trial.” FED. R. CIV. P. 56(e). The “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).
Defendants move for summary judgment on Imhoff's design-defect claims, arguing that Imhoff's specific-causation evidence fails to identify a specific defect in Gynemesh PS mesh linked to her injuries. Imhoff responds that, when viewed collectively, her evidence amply creates an issue of fact on specific causation. The court agrees with Imhoff.
O.R.S. § 30.920 imposes strict liability on a manufacturer for injuries caused by its product if the product is “both defective and unreasonably dangerous.” Purdy v. Deere & Co., 311 Or.App. 244, 247 (2021), rev. denied, 369 Or. 110 (citing McCathern v. Toyota Motor Corp., 332 Or. 59, 77 (2001)). Under Oregon law, the necessary elements of a strict-liability design-defect case are:
(1) the sale or leasing of a product by one engaged in the business of selling or leasing such products; (2) a product that was expected to, and did, reach the user or consumer without substantial change in condition; (3) a product that, when sold, was in a defective condition unreasonably dangerous to the user or consumer; (4) injury to the user or consumer, or damage to his or her property; (5) that was caused by the product's defective condition.
McCathern, 332 Or. at 77 n.15. Further, strict liability for a design-defect case is governed by the consumer-expectations test. McCathern, 332 Or. at 79; Bowden v. United...
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