Kelly v. Ethicon, Inc.
| Decision Date | 07 August 2020 |
| Docket Number | No. 20-CV-2036-CJW-MAR,20-CV-2036-CJW-MAR |
| Court | U.S. District Court — Northern District of Iowa |
| Parties | SUSAN KELLY; and TIMOTHY KELLY, Plaintiffs, v. ETHICON, INC., and JOHNSON & JOHNSON, Defendants. |
TABLE OF CONTENTS
I. INTRODUCTION ......................................................................... 3
II. RELEVANT BACKGROUND ........................................................... 3
III. APPLICABLE LAW ....................................................................... 4
IV. ANALYSIS ................................................................................... 6
V. CONCLUSION ............................................................................. 22
I. INTRODUCTION
This matter is before the Court on defendants' Motion for Partial Summary Judgment filed on August 9, 2019. (Docs. 38 & 39). On August 28, 2019, plaintiffs timely filed a resistance. (Doc. 45). For the following reasons, the Court grants in part and denies in part defendants' motion.
II. RELEVANT BACKGROUND
Plaintiffs Susan Kelly ("plaintiff") and Timothy Kelly ("Timothy") have resided in Iowa since 1990. (Doc. 38-1, at 3). Defendant Johnson & Johnson and its subsidiary, defendant Ethicon, Inc. ("Ethicon"), are New Jersey corporations. (Doc. 1, at 6).
On March 7, 2004, plaintiff received a tension-free vaginal tape ("TVT") mesh implant manufactured by Ethicon. See (Doc. 39, at 2). Plaintiff's implantation procedure took place in Waterloo, Iowa. (Id.). Plaintiff received the implant to stabilize her prolapsed bladder. (Doc. 40-1, at 44). Dr. Randall Bremner ("Dr. Bremner") performed the procedure. (Doc. 39, at 2). Plaintiff testified that she does not remember receiving any brochures, handouts, or other materials about the TVT implant before her surgery, that she did not know who manufactured the implant, and that she did not rely on any statements by defendants in selecting it. (Id.; 45, at 3-4). Plaintiff, however, states that Dr. Bremner failed to inform her of the potential risks posed by the TVT implant and that she relied on his advice. (Doc. 45, at 3-6). She states she was only informed of the risks posed by the implant procedure and not the TVT itself. (Id., at 5). Plaintiff alleges that, as a result of her TVT implant corroding, oxidizing, or eroding, she has suffered from, among other things, "depression, pelvic pain, dyspareunia, loss of services of her spouse, continued and worsening incontinence, [urinary tract infections], urinary retention, abdominal pain, urgency, frequency, and dysuria." (Id., at 4) (citing plaintiff's deposition testimony).
On February 28, 2014, plaintiffs filed suit in the multidistrict litigation ("MDL") related to defendants' TVT implant in the United States District Court for the Southern District of West Virginia. (Doc. 1). Plaintiffs asserted seventeen claims consisting of: (1) negligence; (2) strict liability for a manufacturing defect; (3) strict liability for failure to warn; (4) strict liability for a defective product; (5) strict liability for a design defect; (6) common law fraud; (7) fraudulent concealment; (8) constructive fraud; (9) negligent misrepresentation; (10) negligent infliction of emotional distress; (11) breach of express warranty; (12) breach of implied warranty; (13) violation of consumer protection laws; (14) gross negligence; (15) unjust enrichment; (16) loss of consortium; and (17) punitive damages. (Id.).1 On September 17, 2014, plaintiff had part of her TVT implant removed in Iowa City, Iowa by Dr. Elizabeth Takacs. (Docs. 39, at 2; 45, at 3).
III. APPLICABLE LAW
For cases filed directly in the main MDL, "the choice of law that applies is the place where the plaintiff was implanted with the product." Belanger v. Ethicon, Inc., No. 2:13-cv-12036, 2014 WL 346717, at *7 (S.D.W. Va. Jan. 30, 2014). Here, plaintiffs filed in the main MDL and plaintiff's implant surgery occurred in Iowa. (Doc. 40-1, at 43-44). Thus, as both parties appear to agree, Iowa substantive law applies to plaintiffs' claims. See (Doc. 39, at 4) (); (Doc. 45) (wherein plaintiffs cite Iowa substantive law throughout but do not explicitly state such law applies or disagree with defendants' position).
Summary judgment is appropriate when "the movant shows that 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). When asserting that a fact is undisputed or is genuinely disputed, a party must support the assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1)(A); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Alternatively, a party may show that "the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1)(B). More specifically, a "party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." FED. R. CIV. P. 56(c)(2).
A fact is "material" if it "might affect the outcome of the suit under the governing law[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). "An issue of material fact is genuine if it has a real basis in the record," Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation omitted), or "when a reasonable jury could return a verdict for the nonmoving party on the question," Wood v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (internal quotation marks and citation omitted). Evidence that presents only "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), or evidence that is "merely colorable" or "not significantly probative," Anderson, 477 U.S. at 249-50, does not make an issue of fact genuine. In sum, a genuine issue of material fact requires "sufficient evidence supporting the claimed factual dispute" that it requires "a jury or judge to resolve the parties' differing versions of the truth at trial." Id. at 249 (citation and internal quotation marks omitted).
In determining whether a genuine issue of material fact exists, courts must view the evidence in the light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences that can be drawn from the facts. Tolan v. Cotton, 572 U.S. 650, 651 (2014); Matsushita, 475 U.S. at 587-88 (citation omitted); see also Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir. 2009) () (alteration in original) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). A court does "not weigh the evidence or attempt to determine the credibility of the witnesses." Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004) (citation omitted). Rather, a "court's function is to determine whether a dispute about a material fact is genuine[.]" Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996). When considering a motion for summary judgment, the court "need consider only the cited materials, but it may consider other materials in the record." FED. R. CIV. P. 56(c)(3).
IV. ANALYSIS
Defendants move for summary judgment on plaintiff's claims for negligence (Count I), strict liability for manufacturing defect (Count II), strict liability for failure to warn (Count III), strict liability for defective product (Count IV), strict liability for design defect (Count V), common law fraud (Count VI), fraudulent concealment (Count VII), constructive fraud (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), and unjust enrichment (Count XV). (Doc. 39, at 1-2).
The Court will address plaintiff's claims in the following order: (1) claims on which plaintiff does not oppose summary judgment; (2) negligence-based claims; (3) fraud-based claims; (4) breach of implied warranty; and (5) unjust enrichment.
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