Nelson v. Johnson

• Decision Date: 23 December 2019
• Docket Number: Case No. 12-C-472
• Citation: 428 F.Supp.3d 1
• Parties: Kathryn M. NELSON, Plaintiff, v. JOHNSON & JOHNSON, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

428 F.Supp.3d 1

Kathryn M. NELSON, Plaintiff,

v.JOHNSON & JOHNSON, et al., Defendants.

Case No. 12-C-472

United States District Court, E.D. Wisconsin.

Signed December 23, 2019

Corey G. Lorenz, Wexler Wallace LLP, Chicago, IL, Molly C. Lavin, Robert L. Jaskulski, Habush Habush & Rottier SC, Milwaukee, WI, for Plaintiffs.

Tracy J. Van Steenburgh, Brandie L Morgenroth, Nilan Johnson Lewis PA, Minneapolis, MN, Daniel R Higginbotham, Thomas Combs & Spann PLLC, Charleston, WV, Jonathan T. Smies, Godfrey & Kahn SC, Green Bay, WI, Kasey Adams, Butler Snow, Ridgeland, MS, Kathleen Gallagher, Beck Redden LLP, Houston, TX, for Defendants.

DECISION AND ORDER

William C. Griesbach, District Judge

Plaintiff Kathryn M. Nelson filed this lawsuit alleging she was injured as a result of the implantation of a Prolift Total Pelvic Floor Repair System device manufactured and sold by Defendants Johnson & Johnson and Ethicon Inc. On May 14, 2009, Plaintiff underwent a vaginal hysterectomy along with the implantation of the Prolift device for pelvic organ prolapse. After the surgery, Plaintiff experienced numerous complications she claims were attributable to the Prolift and underwent surgical intervention, including a vaginal mesh revision and excision. That surgery did not resolve the complications. Plaintiff filed this suit on November 2, 2012, alleging causes of action for strict products liability and negligence.

At the time that Plaintiff's cause of action accrued, strict products liability in Wisconsin was governed by common law. See, e.g. , Godoy v. E.I. du Pont de Nemours & Co. , 2009 WI 78, 319 Wis. 2d 91, 768 N.W.2d 674. Effective February 1, 2011, the Wisconsin legislature enacted 2011 WI Act 2, which created Wis. Stat. § 895.047, among other statutes. Section 895.047, entitled "product liability," provides in relevant part that, in an action for damages caused by a manufactured product based on a claim of strict liability, a manufacturer is liable to a claimant if the claimant establishes all of the following by a preponderance of the evidence:

(a) That the product is defective because it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product contains a manufacturing defect if the product departs from its intended design even though all possible care was exercised in the manufacture of the product. A product is defective in design if the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe. A product is defective because of inadequate instructions or warnings only if the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.

(b) That the defective condition rendered the product unreasonably dangerous to persons or property.

(c) That the defective condition existed at the time the product left the control of the manufacturer.

(d) That the product reached the user or consumer without substantial change in the condition in which it was sold.

(e) That the defective condition was a cause of the claimant's damages.

Wis. Stat. § 895.047(1). Plaintiff claims that this statute legislatively overruled much of Wisconsin's common law of strict products liability.

This matter comes before the court on Plaintiff's motion regarding the applicable law and jury instructions to apply at trial. The parties do not dispute that Wis. Stat. § 895.047, by its terms, applies retroactively. Defendants assert that, because Plaintiff filed this suit in 2012, Wis. Stat. § 895.047 governs this action. Plaintiff contends, however, that the statute's retroactive application would be unconstitutional because it would impair her vested right to pursue her claims under the pre-Act common law. The issue before the court is whether the retroactive application of Wis. Stat. § 895.047 unconstitutionally impacts Plaintiff's right to pursue her claims. For the following reasons, the court finds that the Wisconsin constitution's guarantee to due process prohibits retroactive application of section 895.047 in this case. As such, Wisconsin common law as it existed at the time Plaintiff's cause of action accrued applies in this case.

In Wisconsin, "[r]etroactive legislation enjoys a presumption of constitutionality, and the challenger bears the burden of overcoming that presumption." Martin by Scoptur v. Richards , 192 Wis. 2d 156, 200, 531 N.W.2d 70 (1995) (citation omitted). The challenger satisfies the burden by demonstrating the unconstitutionality of the legislation beyond a reasonable doubt. Matthies v. Positive Safety Mfg. Co. , 2001 WI 82, ¶ 26, 244 Wis. 2d 720, 628 N.W.2d 842. Notwithstanding the presumption of constitutionality, retroactive legislation is viewed with "some degree of suspicion" and must meet the test of due process. Martin , 192 Wis. 2d at 201, 531 N.W.2d 70. To determine whether a retroactive statute comports with due process, the court first asks whether the statute is taking away the challenger's "vested right." Matthies , 244 Wis. 2d 720, ¶ 21, 628 N.W.2d 842. If no vested right is at stake, then the statute satisfies due process, ending the inquiry. If the court finds that the challenger is losing a vested right, then the court asks whether retroactive application has a rational basis. Id. at ¶ 27.

The Wisconsin Supreme Court has acknowledged that "[d]efining a ‘vested right’ is somewhat difficult" and has explained that "a right is vested when it has been so far perfected that it cannot be taken away by statute." Land's End, Inc. v. City of Dodgeville , 2016 WI 64, ¶¶ 68–69, 370 Wis. 2d 500, 881 N.W.2d 702. The court has also recognized that "an existing right of action which has accrued under the rules of the common law or in accordance with its principles is a vested property right." Id. at ¶ 70 (quoting Matthies , 244 Wis. 2d 720, ¶ 22, 628 N.W.2d 842 ); see also Gibson v. Am. Cyanamid Co. , 760 F.3d 600, 609 (7th Cir. 2014) ("The Wisconsin Supreme Court decisions in Matthies and in Martin both dictate that a plaintiff's interest in a common-law claim is a protected vested interest."). Plaintiff's strict products liability claim accrued on the date of her injury, and she therefore had a vested property right before the Wisconsin legislature enacted section 895.047. Defendants assert that, even though Plaintiff may have a vested right in her strict products liability claim, section 895.047 merely altered the procedural framework for pursuing strict liability claims and Plaintiff does not have a vested right in the procedural burdens of proof and remedies connected with her claim. Plaintiff counters that section 895.047 constitutes substantive change to Wisconsin law.

"The definitions of ‘substantive’ and ‘procedural’ are relatively easy to state but are not always easy to apply. Indeed, the procedural/substantive dichotomy depends on the context of the analysis." Trinity Petroleum, Inc. v. Scott Oil Co. , 2007 WI 88, ¶ 41, 302 Wis. 2d 299, 735 N.W.2d 1. The Wisconsin Supreme Court observed that " ‘[a] procedural law is that which concerns the manner and order of conducting suits or the mode of proceeding to enforce legal rights and the substantive law is one that establishes the rights and duties of a party.’ " Id. (quoting 3A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 67.2, at 104–05 (6th ed. 2001)). It explained, "It is often written that if a statute creates, defines, and regulates rights and obligations, it is substantive. If a statute prescribes the method, that is, the legal machinery, used in enforcing a right or remedy, it is procedural." Id.

As previously stated, at the time Plaintiff's claim accrued, strict products liability law in Wisconsin was a function of common law. In Dippel v. Sciano , 37 Wis. 2d 443, 155 N.W.2d 55 (1967), the Wisconsin Supreme Court adopted the rule of strict liability as set forth in the RESTATEMENT (SECOND) OF TORTS § 402A to be applied in products liability cases. Under the common law rule, a plaintiff was required to prove the following five elements to establish a strict product liability claim:

(1) that the product was in defective condition when it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause (a substantial factor) of the plaintiff's injuries or damages, (4) that the seller engaged in the business of selling such product or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the seller, and (5) that the product was one which the seller expected to and did reach the user or consumer without change in the condition it was when he sold it.

Dippel , 37 Wis. 2d at 460, 155 N.W.2d 55. Wisconsin strict liability law applied the consumer-contemplation test in design defect cases. See Green v. Smith & Nephew AHP, Inc. , 2001 WI 109, ¶ 34, 245 Wis. 2d 772, 629 N.W.2d 727. The consumer-contemplation test assessed whether a product is unreasonably dangerous and imposed liability where the product was "(1) in a condition not contemplated by the ultimate consumer; and (2) dangerous to an extent beyond that which would be contemplated by the ordinary consumer." Id. at ¶ 40 (internal quotation marks and citation omitted). "[A]lthough the feasibility of an alternative design can be considered when evaluating a design defect claim, it is not a requirement." Godoy , 319 Wis. 2d 91, ¶ 43, 768 N.W.2d 674 (citation omitted).

Section 895.047 of the Wisconsin Statutes altered the way in which a plaintiff proved a strict products liability claim. It essentially changed the elements. As an initial matter, the...