Miller v. Bristol-Myers Squibb Co.

• Decision Date: 06 October 2000
• Docket Number: No. Civ.A. AW-97-3973.,Civ.A. AW-97-3973.
• Citation: 121 F.Supp.2d 831
• Parties: Wendy MILLER, Plaintiff, v. BRISTOL-MYERS SQUIBB COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Maryland

121 F.Supp.2d 831

Wendy MILLER, Plaintiff, v. BRISTOL-MYERS SQUIBB COMPANY, et al., Defendants.

No. Civ.A. AW-97-3973.

United States District Court, D. Maryland.

October 6, 2000.

COPYRIGHT MATERIAL OMITTED

Michael A. Pretl, Severna Park, MD, Jodi Lyn Hammerman, Michelle A. Parfitt, Ashcraft and Gerel, Baltimore, MD, for plaintiff.

James L. Shea, Dino S. Sangiamo, Venable, Baetjer and Howard, LLP, Baltimore, MD, Richard Alan Dean, Arter & Hadden, Washington, DC, for defendants Bristol-Myers Squibb Company and Medical Engineering Corporation.

Terri Steinhaus Reiskin, Hogan & Hartson, Washington, DC, for defendant Minnesota Mining & Manufacturing Co.

MEMORANDUM OPINION

WILLIAMS, District Judge.

Plaintiff, Wendy Miller, brings this diversity action against Bristol-Myers Squibb Co. ("Bristol-Myers"), Medical Engineering Corp. ("MEC"), and Minnesota Mining & Manufacturing Co. ("3M"). The complaint includes 29 counts. Plaintiff's main allegations sound in products liability on theories of strict liability, negligence, negligent misrepresentation, and breach of warranty in the use of one of the defendants' products in her breast implant surgery. (Counts 1-9, 11, 13-14, 16-17, 20-23). Plaintiff also seeks relief for fraud (Counts 10, 12, 15), intentional infliction of emotional distress (Count 18), negligent infliction of emotional distress (Count 19), violations of the Lanham Act (Count 25) and violations of the Magnuson-Moss Act (Count 26).

Currently pending before the Court are three motions. All defendants, via two motions, seek summary judgment on the basis that Plaintiff has failed to produce legally sufficient evidence that identifies which defendant manufactured her breast implants. Plaintiff seeks to enforce the alleged terms of a settlement agreement with Bristol-Myers and MEC (collectively "MEC").¹ MEC disputes the existence and terms of the alleged settlement agreement. Furthermore, MEC alleges that Plaintiff failed to satisfy a condition precedent to the settlement agreement.

The motions have been fully briefed by all parties. On October 4, 2000, the Court held a hearing on the pending motions. Upon consideration of the arguments made in support of, and opposition to, the respective motions, the Court makes the following determinations.

I. FACTUAL BACKGROUND

A. Breast Implant Litigation

In May of 1979, Plaintiff underwent breast implant surgery. Dr. Nicholas Azzato performed the procedure. During the period that Plaintiff received her implants, Gloria Fusco was a nurse in Dr. Azzato's office. In a letter, Ms. Fusco stated that her duties, while employed by Dr. Azzato, included ordering breast implants for surgical procedures and assisting Dr. Azzato in performing breast implantation procedures. (Ex. A., Pl.'s Mot. to Enforce the Settlement Agreement.) Ms. Fusco's letter indicated that, during the period of Plaintiff's breast implant surgery, Dr. Azzato used McGhan and Surgitek breast implants. The letter also stated that, due to Dr. Azzato's death in 1996, Plaintiff's medical records are unavailable to specifically identify which product was implanted into Plaintiff. The implants have not been removed from Plaintiff's body due to financial constraints.

McGhan breast implants were manufactured by 3M following its acquisition of McGhan Medical Corporation in June 1977. Surgitek breast implants were manufactured by Surgitek, Inc., the predecessor in interest to MEC.

B. The Settlement Agreement

On August 25, 1998, MEC entered into a settlement negotiations with Plaintiff's attorney, Ashcraft & Gerel. A settlement package was approved and several communications occurred thereafter. MEC alleges that the agreement to pay the claims of Ashcraft & Gerel clients was limited to clients that met two conditions. These conditions precedent included: (1) providing "satisfactory proof of product manufacture" and (2) opting out of the Revised Settlement Program of the Breast Implant Multi-District Litigation proceeding in the Northern District of Alabama. (Def.'s Opp'n to Mot. to Enforce Settlement Agreement at 5.) MEC claims that only those of the seventy (70) Ashcraft & Gerel clients that met these conditions could participate in the settlement agreement.² Ashcraft & Gerel disputes the existence of any conditions precedent, including the requirement for proof of manufacture. Instead, Ashcraft & Gerel argues that the settlement agreement was negotiated as a package deal in which all seventy (70) clients that submitted settlement claim packages during negotiations would participate.

In a letter dated August 26, 1998, Michelle Parfitt, an attorney from Ashcraft & Gerel, wrote Michael Tanenbaum, counsel for MEC, to memorialize the settlement agreement. The letter listed Plaintiff along with seventy (70) other clients of Ashcraft & Gerel. The letter also stated that additional proof of manufacture for three of Ashcraft & Gerel's other clients was attached.

In a letter dated March 14, 2000, Jodi Hammerman of Ashcraft & Gerel informed Mr. Tanenbaum that "Ms. Miller's release was submitted to Bristol Myers on February 19, 1999." The release called for Plaintiff to be paid $29,102 for settling her claim. The letter stated that, after receipt of the release, Mr. Tanenbaum requested another copy of Plaintiff's settlement package and "additional materials." The letter stated that Ashcraft & Gerel complied with the request for additional information. Ms. Hammerman reiterated Ashcraft & Gerel's position that Plaintiff's case was part of the seventy (70) cases negotiated "as a whole," thus, entitling Plaintiff to immediate payment.

In a response letter to Ms. Hammerman dated March 17, 2000, Diane Pompei reasserted MEC's position that Plaintiff failed to satisfy the condition precedent for entitlement to payment. Ms. Pompei wrote that Ashcraft & Gerel was made aware of the conditions precedent by "numerous conversations with attorneys from ... Ashcraft & Gerel ... regarding [the submitted] documents and deficiencies in the information provided." The letter also points to another client of Ashcraft & Gerel who has been denied payment for failing to provide proof of her opt-out status.

As of October 4, 2000, sixty-eight (68) of the seventy (70) Ashcraft & Gerel clients have been paid. (Pl.'s Mem. in Supp. of Mot. to Enforce Settlement Agreement at 5.) Three of the paid clients are women who submitted the same letter from Ms. Fusco in their settlement package. Plaintiff has been the only one of four Ashcraft & Gerel clients relying on Ms. Fusco's letter not paid under the settlement agreement.

II. DISCUSSION

A. Defendant—3M's Motion for Summary Judgment

In reviewing a motion for summary judgment, the court must review the facts in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must "draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded to particular evidence." Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (citations omitted). Rule 56(c) of the Federal Rules of Civil Procedure provides that the entry of summary judgment is proper, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390, 393 (4th Cir.1994); see LeBlanc v. Cahill, 153 F.3d 134 (4th Cir.1998).

1. Products Liability—Strict Liability, Negligence, Negligent Misrepresentation, and Fraud

Defendant, in its motion for summary judgment and reply, states that it is entitled to judgment as a matter of law on two grounds: (1) Plaintiff failed to provide legally sufficient evidence identifying 3M as the manufacturer of her breast implants, an essential element in her products liability claims, and (2) Plaintiff failed to meet her evidentiary burden to survive summary judgment.

a. Identification of Source of Injury

As a case brought before the federal court under diversity jurisdiction, the substantive laws of the forum state, Maryland, apply. See, e.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In Maryland, "[r]egardless of the recovery theory, the plaintiff in product litigation must satisfy three basics from an evidentiary standpoint: 1) the existence of a defect; 2) the attribution of the defect to the seller; and 3) a causal relation between the defect and the injury." Jensen v. American Motors Corp., 50 Md.App. 226, 234, 437 A.2d 242, 247 (Md. Spec.App.1981) quoted in Foster v. American Home Products Corp., 29 F.3d 165, 168 (4th Cir.1994) (finding that the same causation requirement applies to actions for negligent misrepresentation of a product). Specific to this case, Maryland law places the burden upon the plaintiff in a products liability suit to show that the named defendant in the action manufactured the product that caused the injury complained of. See Lohrmann v. Pittsburgh Corning Corp. 782 F.2d 1156 (4th Cir.1986) (concluding that, under Maryland law, evidence of the use of three manufacturers' asbestos products in the plaintiff's workplace was insufficient to attribute liability for the plaintiff's injury); Anchor Packing Co. v. Grimshaw, 115 Md.App. 134, 692 A.2d 5 (Md.Spec.App.1997) (finding that evidence that manufacturers' asbestos products were generally used in the plaintiff's workplace was insufficient alone to establish that the defendant's products caused the plaintiff's injury), vacated on other grounds by Porter Hayden v. Bullinger, 350 Md. 452, 466, 713 A.2d 962, 969 (1998).

Even drawing all reasonable inferences and attributing the greatest weight to Plaintiff's proffered evidence, Plaintiff still failed to show...