Kelly v. Ethicon, Inc.

Decision Date06 January 2021
Docket NumberNo. 20-CV-2036-CJW-MAR,20-CV-2036-CJW-MAR
Citation511 F.Supp.3d 939
Parties Susan KELLY; and Timothy Kelly, Plaintiffs, v. ETHICON, INC.; and Johnson & Johnson, Defendants.
CourtU.S. District Court — Northern District of Iowa

Andrew J. Feldman, Pro Hac Vice, Jacob Alex Flint, Pro Hac Vice, Flint Law Firm LLC, Edwardsville, IL, Sara E. Coopwood, Flint Law Firm, Dallas, TX, for Plaintiffs.

Nancy J. Penner, Robert D. Houghton, Shuttleworth & Ingersoll, Cedar Rapids, IA, Christy D. Jones, William M. Gage, Butler Snow, Ridgeland, MS, David B. Thomas, Susan M. Robinson, Thomas Combs & Spann, Charleston, WV, Kari L. Sutherland, Butler Snow, Oxford, MS, for Defendants.


C.J. Williams, United States District Judge





A. Applicable Law...945

B. Analysis...945


A. Applicable Law...947

B. Analysis...948



This matter is before the Court on defendants Ethicon, Inc. ("Ethicon") and Johnson & Johnson's (collectively "defendants") Supplemental Motion for Summary Judgment on the Statute of Limitations. (Doc. 93). On November 10, 2020, plaintiffs Susan Kelly ("plaintiff") and Timothy Kelly ("Timothy") (collectively "plaintiffs") timely filed a resistance. (Doc. 95). On November 24, 2020, defendants timely filed a reply. (Doc. 102). On December 8, 2020, plaintiffs, with the Court's permission, filed a surreply. (Docs. 105 & 106).

This matter is also before the Court on plaintiffs' Motion to Strike defendants' Supplemental Motion for Summary Judgment. (Doc. 94). On November 24, 2020, defendants timely filed a resistance. (Doc. 101). On December 8, 2020, plaintiffs timely filed a reply. (Doc. 103).

For the following reasons, the Court denies plaintiffs' Motion to Strike (Doc. 94), grants defendants' Supplemental Motion for Summary Judgment on the Statute of Limitations (Doc. 93), and dismisses this case with prejudice .


The Court will briefly recite the facts and procedural history of this case here and incorporate additional facts below as they become relevant. Plaintiffs have resided in Iowa since at least 1990. (Doc. 38-1, at 3). Johnson & Johnson and its subsidiary Ethicon are both New Jersey corporations. (Doc. 1-1, at 1).

On March 7, 2004, in Waterloo, Iowa, plaintiff was surgically implanted with a tension-free vaginal tape ("TVT") implant manufactured by Ethicon. See (Doc. 39, at 2). Plaintiff received the implant to stabilize her prolapsed bladder and treat her stress urinary incontinence. (Docs. 39, at 2; 40-1, at 44). Plaintiff alleges that 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" as a result of her TVT implant corroding, oxidizing, or eroding. (Doc. 45, at 4) (citing plaintiff's deposition testimony). 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).

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). On June 2, 2020, this case was transferred to this Court. (Doc. 62). On August 7, 2020, the Court granted in part and denied in part defendants' motion for partial summary judgment. (Doc. 81). As a result, the only remaining claims are plaintiff's claims for negligence (as it relates to negligent design) (Count I), negligent infliction of emotional distress (Count X), and unjust enrichment (Count XV), Timothy's claim for loss of consortium (Count XVII), and plaintiffs' claim for punitive damages (Count XVII). (Id. , at 23). On October 16, 2020, the Court granted defendants' motion to file a successive or supplemental motion for summary judgment on the statute-of-limitations. (Doc. 92, at 29).


In their motion, plaintiffs ask the Court, under Federal Rule of Civil Procedure 12(f), to strike defendants' Supplemental Motion for Summary Judgment on the Statute of Limitations, strike certain portions of plaintiff's deposition testimony,1 strike defendants' statute-of-limitations affirmative defense, and prevent defendants from relying on plaintiff's deposition testimony at trial. (Docs. 94, at 1; 94-1, at 9).

Some additional background information is necessary before the Court can turn to its analysis. During discovery, defendants gave notice of their intent to depose plaintiff. (Doc. 19). Although plaintiffs objected to some of defendants' requests (Doc. 22), plaintiff still attended the deposition on April 30, 2019 (Doc. 93-3, at 30–80). P.J. Scarr ("Ms. Scarr") conducted plaintiff's deposition on behalf of defendants. (Id. ). Ms. Scarr is licensed to practice law in West Virginia (but apparently not Iowa) and is an independently contracted attorney for defendants' counsel's law firm, not a staff attorney. See (Doc. 101, at 12) (providing Ms. Scarr's West Virginia Bar identification number); (Doc. 101-4) (directing Ms. Scarr to file a notice of appearance in the Southern District of West Virginia in another case in the same MDL); (Doc. 103, at 3) ("There is no dispute that P.J. Scarr is an apparent contract attorney for Defendants."). Ms. Scarr has never filed an appearance in this case. Plaintiff did not object to Ms. Scarr conducting her deposition at the time. (Doc. 93-3, at 30–80). Ms. Scarr also deposed Timothy that same day without objection. (Doc. 101-2).

Plaintiffs argue that because Ms. Scarr has not filed an appearance in this case, the Court should strike portions of plaintiff's April 30, 2019 deposition testimony.

(Doc. 94-1, at 2–3, 6–7). Further, because defendants' supplemental motion for summary judgment and statute-of-limitations affirmative defense both rely on such testimony, plaintiffs assert the Court should strike them as insufficient. (Id. , at 5).2

A. Applicable Law

Federal Rule of Civil Procedure 12(f) provides that a "court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." A district court has wide discretion in ruling on a motion to strike, particularly because Rule 12(f) is permissive in nature. Holt v. Quality Egg, L.L.C. , 777 F. Supp. 2d 1160, 1168 (N.D. Iowa 2011). Motions to strike are considered an extreme measure and are thus disfavored and infrequently granted. Id. "Nevertheless, a motion to strike should be granted if it may have the effect of making the trial of the action less complicated, or it may have the effect of otherwise streamlining the ultimate resolution of the action." Nelson v. Long Lines Ltd. , No. C02-4083-MWB, 2003 WL 21356081, at *3 (N.D. Iowa June 11, 2003) (citation, internal quotation marks, and alteration omitted).3

B. Analysis

Plaintiffs request the drastic relief of not only striking defendants' supplemental motion for summary judgment, but striking defendants' entire statute-of-limitations defense, striking certain portions of plaintiff's deposition testimony (but not portions favorable to her), and barring defendants from citing such testimony at trial. Plaintiffs request all of this based only on the fact that the attorney who conducted plaintiff's deposition a year and a half ago did not file an appearance in this case. Plaintiffs have not cited any authority holding that such sweeping relief is appropriate under these circumstances. The Court is not aware of any such authority. On its face, the Court finds the requested remedies overwhelmingly outweigh the cited harm. The Court will, however, parse the merits of plaintiffs' claims.

Title 28, United States Code, Section 1654 provides that, in all federal district courts, parties may be represented by counsel in compliance with the rules of individual courts. Some courts require attorneys to file an appearance if they conduct a deposition in a case. See, e.g., Middlebrooks v. Sacor Fin., Inc. , No. 1:17-CV-0679-SCJ-JSA, 2018 WL 4850122, at *24 (N.D. Ga. July 25, 2018) (noting that an attorney who appeared at the plaintiff's deposition was instructed to file a notice of appearance by the end of the day and cautioned that such a notice was required under the court's local rules); see also N.D. Ga. LR 83.1(D)(1) ("An attorney whose appearance has not been noticed will not be permitted to represent a party at trial or in any other Court proceeding until the attorney has filed a Notice of Appearance."). Other courts do not require a notice of appearance from an attorney under such circumstances. See, e.g., Hernandez-Martinez v. Chipotle Mexican Grill, Inc. , No. 11 C 4990, 2013 WL 2384251, at *2 (N.D. Ill. May 30, 2013) ("An attorney need not file an appearance in order to take a deposition."); Walters v. Cent. States Coca-Cola Bottling Co. , No. 98 C 4526, 2001 WL 1263680, at *8 (N.D. Ill. Oct. 17, 2001) (finding a deposing attorney was not required to file a notice of appearance because depositions are not conducted under court supervision). The Southern District of West Virginia's Local Rules do not discuss when an attorney must enter an appearance.4

It is far from clear whether Ms. Scarr violated any rule at all by conducting a deposition without entering an appearance. The Southern District of West Virginia's Local Rules provide no guidance on this topic. Given that the Southern District of West Virginia retroactively required Ms. Scarr to file a notice of appearance in another case in the same MDL, it appears that the court at least prefers that attorneys file a notice of...

To continue reading

Request your trial
1 cases
  • Grady v. Cooper
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • January 6, 2021

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT