Perez v. Am. Med. Sys. Inc.
| Decision Date | 14 May 2020 |
| Docket Number | EP-20-CV-49-KC |
| Parties | Luz PEREZ and Dario Perez, Plaintiffs, v. AMERICAN MEDICAL SYSTEMS INC., Defendant. |
| Court | U.S. District Court — Western District of Texas |
Karolina S. Kulesza, Driggs Bills & Day, Salt Lake City, UT, Jason Murphy, Pro Hac Vice, Driggs, Bills & Day PLLC, Seattle, WA, for Plaintiffs.
Christina M. Vitale, Reed Smith LLP, Houston, TX, Barbara R. Binis, Reed Smith, Stephen J. McConnell, Cira Centre, Philadelphia, PA, for Defendant.
On this day, the Court considered Defendant's Motion for Summary Judgment, ECF No. 51. For the following reasons, the Motion is GRANTED in part and DENIED in part.
This products liability action originated in the United States District Court for the Southern District of West Virginia, where it was filed on March 24, 2016, in connection with In re American Medical Systems, Inc., Pelvic Repair System Products Liability Litigation (MDL No. 2325). See Short Form Compl., ECF No. 1. Plaintiffs are Luz Perez, who was allegedly injured by Defendant's product, and her spouse, Dario Perez. Id. at 1. Plaintiffs' case is one of approximately 18,824 cases that have been filed against Defendant, a Delaware corporation, arising out of its allegedly wrongful design, manufacture, marketing, and sale of a line of pelvic mesh products. See Master Long Form Compl. & Jury Demand ("Long Form Compl."), ECF No. 44-5; February 6, 2020, Transfer Order (Joseph R. Goodwin, J.), ECF No. 42.
This individual case was transferred to this Court on February 20, 2020. See Electronic Transfer, ECF No. 45. All discovery was completed prior to transfer. See Transfer Order. On March 9, 2020, Defendant filed the instant Motion.1 Plaintiffs filed a Response, ECF No. 56, to which Defendant filed a Reply, ECF No. 59. Defendant included Proposed Undisputed Facts (the "PUF"), as an appendix to its Motion. See Mot. 22. Because Plaintiffs did not file a Response to the PUF in accordance with the Court's Standing Order Regarding Motions for Summary Judgment, the Court ordered them to do so. April 15, 2020, Order, ECF No. 60. Plaintiffs subsequently filed their Response to Proposed Undisputed Facts, ECF No. 61.
The following facts are derived from Defendant's PUF, Plaintiffs' Response to the PUF, and the portions of the record referenced by the parties in the Motion, the Response, and the Reply. The facts are undisputed unless otherwise noted.
On February 11, 2010, in El Paso, Texas, Dr. Linda Lacy implanted Ms. Perez with an Elevate mesh device (the "Mesh"), a product which was designed, manufactured, and sold by Defendant. PUF ¶ 2; Reply Ex. A (containing notes taken by Dr. Lacy following the procedure), ECF No. 59-1. Prior to performing the procedure, Dr. Lacy informed Ms. Perez of some of the risks associated with the Mesh. Reply Ex. E ("Dep. of Linda Lacy") 20:8–13, ECF No. 59-5. Dr. Lacy testified that she was independently aware of these risks and did not rely on the Instructions for Use that Defendant created and provided to Dr. Lacy together with the Mesh. Reply 2 (citing Dep. of Linda Lacy 16:15–25, 18:5–7, 19:3–8.).
Ms. Perez claims that the Mesh has caused her to suffer dyspareunia
, abdominal pain, pain with urinating, erosion, urinary tract infections, and incontinence. See Reply Ex. C ("Fact Sheet") 6–7, ECF No. 59-3. Defendant's Instructions for Use, provided to Dr. Lacy together with the Mesh, warn of each of these risks. Reply 2 (citing Reply Ex. D ("Instructions for Use"), ECF No. 59-4). Moreover, Dr. Lacy was independently aware of each of these risks prior to implanting the Mesh in Ms. Perez. Id. (citing Dep. of Linda Lacy 20:8–24, 21:11–18).
The parties agree that Ms. Perez began to experience pain and other complications immediately after the initial procedure. PUF ¶ 3. Indeed, in the Plaintiff's Fact Sheet that Ms. Perez completed during discovery, she wrote that "[the Mesh] has caused me pain and complications from the start." PUF ¶ 3; Mot. Ex. 2 ("Fact Sheet"), at 11, ECF No. 51-1. However, the parties dispute when Ms. Perez first realized that her pain and complications were attributable to defects in the Mesh. Resp. to PUF 2. Defendant argues that the evidence demonstrates Ms. Perez was aware that the Mesh was the cause of her problems by February 8, 2011, at the latest, when she agreed to allow Dr. Lacy to perform a corrective procedure to remove part of the Mesh. See Mot. 3 (citing Dep. of Luz Perez 96:8–23).2 Plaintiffs argue that the evidence demonstrates Ms. Perez did not attribute her injuries to the Mesh until she saw advertisements about transvaginal mesh litigation, some unspecified number of years later. See Resp. 5 (citing Dep. of Luz Perez 7:22–8:19, ECF No. 56-7).
A court must enter 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." Fed. R. Civ. P. 56(a) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Weaver v. CCA Indus., Inc. , 529 F.3d 335, 339 (5th Cir. 2008). "A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law." Sossamon v. Lone Star State of Tex. , 560 F.3d 316, 326 (5th Cir. 2009) (quoting Hamilton v. Segue Software, Inc. , 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)). A dispute about a material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Ellison v. Software Spectrum, Inc. , 85 F.3d 187, 189 (5th Cir. 1996).
"[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ; Wallace v. Tex. Tech. Univ. , 80 F.3d 1042, 1046–47 (5th Cir. 1996). To show the existence of a genuine dispute, the nonmoving party must support its position with citations to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials[,]" or show "that the materials cited [by the movant] do not establish the absence ... of a genuine dispute, or that [the moving party] cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c).
The court resolves factual controversies in favor of the nonmoving party; however, factual controversies require more than "conclusory allegations," "unsubstantiated assertions," or "a ‘scintilla’ of evidence." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Further, when reviewing the evidence, the court must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh evidence. Man Roland, Inc. v. Kreitz Motor Express, Inc. , 438 F.3d 476, 478–79 (5th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). Thus, the ultimate inquiry in a summary judgment motion is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson , 477 U.S. at 251–52, 106 S.Ct. 2505.
Defendant moves for summary judgment dismissal of all of Plaintiffs' claims. See Mot. 13. When they filed this lawsuit, Plaintiffs selected all available "counts" provided on the Short Form Complaint that was created in order to streamline pleadings in the MDL. See Short Form Compl. 4–5. These "counts" include negligence, strict liability design defect, strict liability manufacturing defect, strict liability failure to warn, strict liability defective product, breach of express warranty, breach of implied warranty, fraudulent concealment, constructive fraud, negligent misrepresentation, negligent infliction of emotional distress, violation of consumer protection laws, gross negligence, unjust enrichment, loss of consortium, and punitive damages. Id.
At summary judgment, however, Plaintiffs aver that they are no longer pursuing their claims for fraudulent concealment, breach of express warranty, negligent infliction of emotional distress, constructive fraud, strict liability manufacturing defect, and unjust enrichment. See Resp. 6–9. Accordingly, Defendant's Motion for Summary Judgment is granted as to these claims. See id.
As to the remaining claims, Defendant principally argues that all must be dismissed by operation of their respective statutes of limitations. Mot. 2–8. Defendant also argues that it is entitled to summary judgment on Plaintiffs' "violation of consumer protection laws" claim because the Texas Deceptive Trade Practices-Consumer Protection Act (the "DTPA"), Tex. Bus. & Com. Code Ann. § 17.41 et seq., does not permit recovery for bodily injury. Mot. 8–9. Lastly, Defendant argues that Plaintiffs' claims for strict liability failure to warn, breach of implied warranty, negligent misrepresentation, and violation of the DTPA must be dismissed under the independent intermediary doctrine. Reply 6–12.
A plaintiff must timely commence suit as provided by the applicable statute of limitations. Childs v. Haussecker , 974 S.W.2d 31, 36 (Tex. 1998). Plaintiffs' claims have statutes of limitations of between two and four years from the date of accrual. Claims under the DTPA, as well as tort and strict liability claims for personal injury, have a statute of limitations of two years. See Tex. Soil Recycling, Inc. v. Intercargo Ins. Co. , 273 F.3d 644, 649 (5th Cir. 2001) (citing Tex. Bus. & Com. Code § 17.565 (Wes...
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