Kelly v. C. R. Bard, Inc.
| Decision Date | 09 December 2019 |
| Docket Number | Case No. A-19-CV-983-LY |
| Parties | SALLIE KELLY, Plaintiff v. C. R. BARD, INC., Defendant |
| Court | U.S. District Court — Western District of Texas |
Before this Court are C. R. Bard, Inc.'s Motion to Dismiss for Insufficient Service of Process, filed on October 5, 2018 (Dkt. No. 17); C. R. Bard's Motion for Summary Judgment, filed on October 18, 2018 (Dkt. No. 23); and the various associated response and reply briefs.
On December 3, 2019, the District Court referred all pending and future discovery motions as well as all other non-dispositive motions in this case to the undersigned for resolution pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas ("Local Rules"). The District Court also referred all pending and future dispositive motions to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and Rule 1(d) of Appendix C of the Local Rules.
This product liability lawsuit is one of more than 100,000 lawsuits filed in several multidistrict litigation ("MDL") cases involving the use of transvaginal surgical mesh to treat pelvic organ prolapse and stress urinary incontinence. The Judicial Panel on Multidistrict Litigation assigned many of these MDL cases to the Honorable Joseph R. Goodwin ("Judge Goodwin"), United States District Judge for the U.S. District Court for the Southern District of West Virginia, Charleston Division. Dkt. No. 27.
The Plaintiff in this case, Sallie Kelly, alleges that she suffered serious injuries after she was implanted with a Pelvicol Acellular Collagen Matrix device on August 21, 2008, by Dr. Subir Chhikara at the Seton Medical Center in Austin, Texas. Plaintiff and her husband, Boyd Kelly,1 originally filed this lawsuit on June 26, 2013 in the Southern District of West Virginia against American Medical Systems, Inc. ("AMS") and C. R. Bard, Inc. ("Bard"), alleging failure to warn, manufacturing defect, design defect, negligent inspection, marketing, packaging, selling, testing and training, breach of express warranty, breach of implied warranty of merchantability, and loss of consortium. See In Re: American Medical Systems, Inc., Pelvic Repair System Products Liability Litigation MDL No. 2325, 2:13-CV-15909 (S.D. W. Va. June 26, 2013).
On December 8, 2017, AMS and Plaintiff notified Judge Goodwin that they had settled the case and filed a Joint Motion to Dismiss AMS from the lawsuit. Accordingly, on December 12, 2017, Judge Goodwin dismissed AMS from the case and transferred the case to the MDL against Bard (MDL 2187). Dkt. No. 7. On January 30, 2018, Judge Goodwin entered a scheduling order setting the discovery deadline for September 4, 2018, and dispositive motion deadline for September 21, 2018. Dkt. No. 8.
On April 10, 2018, Bard filed its first motion to dismiss for insufficient process, arguing that it had never been served with the lawsuit, in violation of Federal Rule of Civil Procedure 4(m). Dkt. No. 9. Although Plaintiff had filed her lawsuit five years earlier, Plaintiff claimed "excusable neglect" and alleged that her counsel "only recently discovered through correspondence fromDefendant after the service of the Fact Sheet that Defendant was not served with process." Dkt. No. 11 at p. 2.
In his Order addressing the motion to dismiss, Judge Goodwin explained that Bard had agreed to waive formal service of process in the case as provided in Pretrial Order No. 47 in the underlying MDL.2 Dkt. No. 12 at p. 2. The "simple procedure" outlined in Pretrial Order No. 47 required plaintiffs to perfect service by sending the short form complaint, a request for waiver of service, and, if in their possession, a sticker page or medical record identifying the product at issue to three specific defense attorneys by email. Although Judge Goodwin found that Plaintiff had failed to effectuate service by the method described in Pretrial Order No. 47, he allowed Plaintiff "a final chance" to comply with the service of process. Dkt. No. 12 at p. 2. Accordingly, the Court denied the motion to dismiss without prejudice and ordered plaintiffs to perfect service on Bard by July 2, 2018.
On June 20, 2018, Plaintiff filed her First Amended Short Form Complaint ("Complaint"), which removed her deceased husband Boyd Kelly from the style of the case. See Dkt. No. 15. Plaintiff continued to assert the same product liability claims against Bard.
On October 5, 2018, Bard filed its second Motion to Dismiss for Insufficient Service of Process, arguing that Plaintiff failed to properly serve Bard by the July 2, 2018 deadline set by Judge Goodwin because she failed to follow the procedure outlined in Pretrial Order No. 47. In response, Plaintiff argues that she properly served the Complaint on Bard on June 20, 2018, when she emailed the Complaint and Plaintiff Profile to Lori Cohen and Michael Brown, who were listed as defense counsel for Bard in its original motion to dismiss.
On October 18, 2018, Bard also filed a Motion for Summary Judgment arguing that all of Plaintiff's claims are time-barred, and alternatively that her claims fail on the merits.
Before ruling on either the Motion to Dismiss or the Motion for Summary Judgment, Judge Goodwin transferred this case to this Court on September 26, 2019, "[f]or the convenience of the parties and in order to promote the final resolution of [this case]," reasoning that the case would be concluded more expeditiously in the venue "from which [it] arise[s]." Dkt. No. 27. at p. 1. The parties previously notified Judge Goodwin that the proper venue for the case would be in the Western District of Texas. Id.
Since the case has been referred to the undersigned, this Court makes the following recommendations as to the pending motions.
Federal Rule of Civil Procedure 12(b)(5) provides that a party may file a motion to dismiss for insufficient service of process. A district court has "broad discretion to dismiss an action for ineffective service of process." Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir. 1994). Federal Rule 4(m) permits dismissal of a suit if a plaintiff fails to serve a defendant within 90 days of filing, but provides that "if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period." FED. R. CIV. P. 4(m); Gartin v. Par Pharm. Cos., 289 F. App'x 688, 692 (5th Cir. 2008) (per curiam). "[G]ood cause under Rule 4(m) requires at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice." Gartin, 289 F. App'x at 692 (citing Lambert v. United States, 44 F.3d 296, 299 (5th Cir. 1999)).
Summary judgment shall be rendered when the pleadings, the discovery and disclosure materials, and any affidavits on file 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); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. A court "may not make credibility determinations or weigh the evidence" in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. Id. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports its claim. See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving party fails to make a showing sufficientto establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Bard argues that Plaintiff failed to properly serve it by the July 2, 2018 deadline set in Judge Goodwin's May 2018 Order because she failed to follow the specific service procedure outlined in Pretrial Order No. 47. Bard contends that it has been prejudiced significantly by Plaintiff's failure to serve. While Plaintiff filed her lawsuit more than six years ago, no discovery has been conducted, no depositions have been taken, and all discovery and expert deadlines have passed.
In the May 2018 Order denying the motion to dismiss without prejudice, Judge Goodwin explained that "in this MDL, the defendants agreed to waive formal...
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