Mallow v. Ethicon, Inc.

• Decision Date: 21 March 2022
• Docket Number: CIV-20-01172-PRW
• Court: U.S. District Court — Western District of Oklahoma
• Parties: DAWNA MALLOW, Plaintiff, v. ETHICON, INC., and JOHNSON & JOHNSON. Defendants.

DAWNA MALLOW, Plaintiff,
v.
ETHICON, INC., and JOHNSON & JOHNSON. Defendants.

No. CIV-20-01172-PRW

United States District Court, W.D. Oklahoma

March 21, 2022

ORDER

PATRICK R. WYRICK UNITED STATES DISTRICT JUDGE

Before the Court is Defendants Ethicon, Inc. and Johnson & Johnson's Supplemental Motion for Summary Judgment (Dkt. 121). For the reasons given below, the Defendants' Supplemental Motion is GRANTED.

Background

In October of 2010, Dawna Mallow was examined by Dr. Jeffrey Smith, a gynecologist who specializes in gynecologic oncology. Dr. Smith diagnosed Ms. Mallow with numerous medical conditions relating to pelvic organ prolapse (organs moved or dropped from a normal anatomical position due to loss of support in the pelvis). On November 29, 2010, Dr. Smith performed an extensive surgery on Ms. Mallow to correct the pelvic organ prolapse. During this surgery, Dr. Smith implemented Ethicon, Inc.'s Gynecare Prosima device to repair and reconstruct the prolapse. The Gynecare Prosima device-manufactured by Johnson & Johnson and its wholly-owned subsidiary, Ethicon- is a surgical pelvic mesh “kit” comprised of polypropylene mesh that surgeons implant into

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patients to assist reparative prolapse surgeries and to provide permanent structural support inside the pelvis.

After the surgery, Ms. Mallow missed several follow-up appointments and never returned to see Dr. Smith. Approximately one year later, on October 13, 2011, Ms. Mallow complained to her primary healthcare provider that she was experiencing pelvic pain, dyspareunia (pain with intercourse), and dysuria (pain with urinating).^[1] Nearly three years later, on August 5, 2014, Ms. Mallow reported that the “mesh fell out”^[2] and decided to seek “cop[ies] of medical records to go to an attorney for use of mesh during surgery.”^[3]

Over two years later, on August 23, 2016, Ms. Mallow sued Ethicon, Johnson & Johnson, and American Medical Systems, Inc. Her lawsuit joined an ongoing multi-district litigation case, In re: Ethicon, Inc., Pelvic Repair System Products Liability Litigation, 2:12-md-2327, which was consolidated in the U.S. District Court for the Southern District of West Virginia. In her Short Form Complaint (Dkt. 1), Ms. Mallow raised seventeen separate counts.^[4] After three years of litigation, Ms. Mallow and American Medical Systems settled, resulting in American Medical Systems' dismissal from the case.

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Following this settlement, Ethicon and Johnson & Johnson filed a motion for summary judgment on all counts. In response, Ms. Mallow conceded that summary judgment was appropriate on Counts II, X, XI, XII, XIII, and XV, but argued that genuine issues of material fact remained under applicable Oklahoma law for Counts I, III, IV, V, VI, VII, VIII, IX, XIV, XVI, and XVII. While this motion for summary judgment was pending, the judge presiding over the multi-district litigation ordered each of the cases transferred to the appropriate U.S. District Court where venue was proper to continue. Ms. Mallow was at all relevant times a resident of Western Oklahoma and received her medical treatment in Edmond, Oklahoma, so this case was transferred to this Court.

Once before this Court, Ms. Mallow's case was placed on a trial schedule and the parties continued with settlement discussions. Shortly after this, Ms. Mallow's attorneys sought leave to withdraw due to a “fundamental disagreement as to the prosecution” of the case and “an irretrievable breakdown in communication.”^[5] The Court granted the withdrawal on October 28, 2021, and gave Ms. Mallow its customary admonition that the case would be proceeding with Ms. Mallow representing herself pro se if she did not retain new counsel within thirty days. Ms. Mallow did not retain new counsel and has been representing herself pro se since that time.

Shortly into the new year, Ethicon and Johnson & Johnson sought, and the Court granted, leave to file a supplemental motion for summary judgment on statute of limitations Complaint (Dkt. 1), at 4-5. Counts XVI and XVII do not constitute independent causes of action.

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grounds. Ms. Mallow failed to respond on the merits, even after receiving extensions of time, so the Court now considers the matter fully briefed.^[6]

Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure requires “[t]he court [to] grant summary judgment 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.” In deciding whether summary judgment is proper, the Court does not weigh the evidence and determine the truth of the matter asserted, but instead determines only whether there is a genuine dispute for trial before the fact-finder.^[7] The movant bears the initial burden of demonstrating the absence of a genuine, material dispute and an entitlement to judgment.^[8] A fact is “material” if, under the substantive law, it is essential to the proper disposition of the claim.^[9] A dispute is “genuine” if there is sufficient evidence on each side so that a rational trier of fact could

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resolve the issue either way.^[10] At the summary judgment stage, the Court views the facts and makes all reasonable inferences in the light most favorable to the nonmoving party.^[11]If the movant carries the initial burden, the nonmovant must then assert that a material fact is genuinely disputed and must support the assertion by “citing to particular parts of materials in the record” which show “that the materials cited [in the movant's motion] do not establish the absence . . . of a genuine dispute, ” or by showing “that [the movant] cannot produce admissible evidence to support the fact.”^[12] The nonmovant does not meet its burden by “simply show[ing] there is some metaphysical doubt as to the...