Langner v. Bos. Scientific Corp., 8:20CV349

• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska
• Writing for the Court: Robert F. Rossiter, Jr., United States District Judge
• Citation: 492 F.Supp.3d 925
• Parties: Vicki LANGNER, Plaintiff, v. BOSTON SCIENTIFIC CORPORATION, Defendant.
• Docket Number: 8:20CV349
• Decision Date: 01 October 2020

492 F.Supp.3d 925

Vicki LANGNER, Plaintiff,
v.
BOSTON SCIENTIFIC CORPORATION, Defendant.

8:20CV349

United States District Court, D. Nebraska.

Signed October 1, 2020

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Andrew J. Cross, Pro Hac Vice, Jeffrey J. Lowe, Pro Hac Vice, Sarah Shoemake Doles, Pro Hac Vice, Carey, Danis Law Firm, St. Louis, MO, for Plaintiff.

Daniel L. Willis, David A. Blagg, Ronald F. Krause, Cassem, Tierney Law Firm, Omaha, NE, James H. Keale, Michael A. Tanenbaum, Tanenbaum Keale, Newark, NJ, Jon A. Strongman, Shook, Hardy Law Firm, Kansas City, MO, Kevin L. Morrow, Faegre, Baker Law Firm, Chicago, IL, Mark J. Winebrenner, Pro Hac Vice, Scholastica Baker, Pro Hac Vice, Faegre, Drinker Law Firm, Minneapolis, MN, for Defendant.

MEMORANDUM AND ORDER

Robert F. Rossiter, Jr., United States District Judge

This matter is before the Court on defendant Boston Scientific Corporation's ("Boston Scientific") Motion for Summary Judgment on the statute of limitation (Filing No. 25) and Motion for Summary Judgment on the merits (Filing No. 26). For the reasons stated below, Boston Scientific's motion on the statute of limitation is denied, and the motion on the merits is granted in part and denied in part.

I. BACKGROUND

In early 2006, plaintiff Vicki Langner ("Langner") consulted with Dr. Emily Kean-Puccioni ("Dr. Kean") at Lakeside Hospital in Omaha, Nebraska, seeking treatment for stress urinary incontinence ("SUI"). To treat Langner's SUI, Dr. Kean recommended surgery to implant the Obtryz Transobturator Mid-Urethral Sling

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System (the "device"), which is manufactured by Boston Scientific. The device is a Class II medical device that was approved by the Federal Drug Administration ("FDA") in 2004 through the 510(k) process. The 501(k) process streamlines FDA approval for devices that are "substantially equivalent" to another legally marketed device. Boston Scientific's device was first marketed in January of 2006 and is available by prescription only.

Langner was made aware of some, but not all, of the possible side effects from the device implantation surgery, and she agreed to Dr. Kean's recommended treatment. Dr. Kean was experienced in implanting synthetic slings similar to the device, as she had performed this surgery over one hundred times prior to Langner's operation. The surgery took place on February 27, 2006. Initially, Langner recovered from the surgery and healed properly. However, by late 2006, Langner began experiencing back pain, joint pain, heavy and prolonged menstrual periods, and flu-like symptoms.

By 2008, Langner was experiencing many health complications, but she was unaware of the cause. She again sought treatment from Dr. Kean, this time for a vaginal bulge that required another surgery. At that time, Langner asked Dr. Kean if her condition was caused by the device. Dr. Kean assured her it was not. For the next several years, Langner sought treatment from multiple physicians for her health issues. Langner saw Dr. William Ostdiek ("Dr. Ostdiek") from 2006 to 2011. When she asked Dr. Ostdiek whether her health issues could be related to the device, he told her the device was not the cause of her deteriorating health.

Langner's health continued to get worse. By 2012, she was experiencing suprapubic abdominal pain, painful urination, increased urinary frequency, sustained back and joint pain, among other health complications. Sometime between 2012 and 2013, Langner saw television commercials regarding the device and other similar mesh slings used to treat SUI. Attorneys published these commercials to alert potential plaintiffs they may have a legal claim against the manufacturers of these devices. Langner admits the symptoms discussed in the commercials resonated with her, yet she denies the advertisements sparked her to see any causal connection between the device and her health issues. At approximately the same time, Langner sought advice from another physician, Dr. Ted Fritz ("Dr. Fritz"). Once again, she asked Dr. Fritz if her symptoms could be related to the device, and he denied the device could be the cause.

Langner maintains the first time she thought the device was causing her symptoms was in April 2016 when she sought treatment from Dr. Thomas Margolis ("Dr. Margolis"). Dr. Margolis was the first physician to advise Langner that her health problems could be caused by the device. Shortly thereafter, Dr. Margolis performed a revision surgery to remove part of the device. Langner had a second revision surgery in February of 2017.

Langner filed this action (Filing No. 1) on April 27, 2018, in the Southern District of West Virginia as part of the products liability multi-district litigation against Boston Scientific. Langner alleged claims for strict products liability (design defect, manufacturing defect, and failure to warn), negligence (design and manufacturing defect), breach of express warranty, breach of implied warranty, and fraudulent concealment. Boston Scientific simultaneously filed a Motion for Summary Judgment on Statute of Limitation and a Motion of Summary Judgment on all Langner's substantive claims on May 13, 2019. In her reply brief, Langner conceded her claims

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based on a manufacturing defect in strict products liability, breach of implied warranty, and fraudulent concealment. On August 13, 2020, the Southern District of West Virginia ordered the transfer of the case to this Court for resolution.

II. DISCUSSION

A. Standard of Review

Summary judgment is required "if 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). A dispute is genuine "when the evidence is such that a reasonable jury could return a verdict for the non-moving party." Dick v. Dickinson State Univ. , 826 F.3d 1054, 1061 (8th Cir. 2016). "A fact is material if it may affect the outcome of the lawsuit." TCF Nat'l Bank v. Mkt. Intelligence, Inc. , 812 F.3d 701, 707 (8th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

When considering a motion for summary judgment, the Court "do[es] not weigh the evidence, make credibility determinations, or attempt to discern the truth of any factual issue." Thomas v. Corwin , 483 F.3d 516, 526-27 (8th Cir. 2007). The Court views all facts in the light most favorable to the nonmoving party and gives them the benefit of all reasonable inferences. Whitney v. Guys, Inc. , 826 F.3d 1074, 1076 (8th Cir. 2016). The moving party, however, " ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ and must come forward with ‘specific facts showing that there is a genuine issue for trial.’ " Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). The Court will "not credit ‘[m]ere allegations, unsupported by specific facts or evidence.’ " Williams v. United Parcel Serv., Inc. , 963 F.3d 803, 807 (8th Cir. 2020) (quoting Thomas , 483 F.3d at 526-27 ).

"A principal purpose of the summary-judgment procedure ‘is to isolate and dispose of factually unsupported claims or defenses,’ " so if there is no factual dispute on any particular claim, the Court must determine whether the defendant is entitled to judgment as a matter of law. Bedford v. Doe , 880 F.3d 993, 996 (8th Cir. 2018) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).

B. Nebraska Law

The parties agree Nebraska law governs this diversity case. See Erie R. Co. v. Tompkins , 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). When deciding issues of Nebraska law, the Court is bound by the decisions of the Nebraska Supreme Court. Packard v. Darveau , 759 F.3d 897, 901 (8th Cir. 2014). Where the Nebraska Supreme Court has not decided a relevant issue of state law, this Court "must try to predict how [it] would do so and decide the case accordingly." Topp's Mech., Inc. v. Kinsale Ins. Co. , 968 F.3d 854, 856 (8th Cir. 2020) (quoting Lindholm v. BMW of N. Am., LLC , 862 F.3d 648, 651 (8th Cir. 2017) ). In making that prediction, this Court "may consider relevant state precedent, analogous decisions, considered dicta, ... and any other reliable data." Packard , 759 F.3d at 901 (quoting Lindsay Mfg. Co. v. Hartford Acc. & Indem. Co., 118 F.3d 1263, 1268 (8th Cir. 1997)).

C. Statute of Limitation

Under Neb. Rev. Stat. § 25-224(1), all strict products liability claims "shall be commenced within four years next after the date on which the death,

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injury, or damage complained of occurs." The statute of limitation generally begins to run as soon as the cause of action accrues, and "an action in tort accrues as soon as the act or omission occurs." Shlien v. Bd. of Regents, Univ. of Neb. , 263 Neb. 465, 640 N.W.2d 643, 650 (2002). In some...