Sanchez v. Bos. Scientific Corp.

• Decision Date: 18 August 2014
• Docket Number: Civil Action No. 2:12–cv–05762.
• Citation: 38 F.Supp.3d 727
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Roseanne SANCHEZ, et al., Plaintiffs, v. BOSTON SCIENTIFIC CORPORATION, Defendant.

38 F.Supp.3d 727

Roseanne SANCHEZ, et al., Plaintiffs

v.BOSTON SCIENTIFIC CORPORATION, Defendant.

Civil Action No. 2:12–cv–05762.

United States District Court, S.D. West Virginia.

Signed Aug. 18, 2014.

Clayton A. Clark, Jay W. Craddock, Scott A. Love, W. Michael Moreland, Clark Love & Hutson, Jim M. Perdue, Jr., Perdue Kidd & Vickery, Thomas W. Pirtle, Laminack Pirtle & Martines, Houston, TX, Derek H. Potts, Timothy L. Sifers, The Potts Law Firm, Kansas City, MO, Aimee H. Wagstaff, Andrus & Wagstaff, Lakewood, CO, for Plaintiffs.

Adrienne L. Hernandez, Eric M. Anielak, Heather A. Grossman, Jon A. Strongman, Kathleen A. Frazier, Mark C. Hegarty, Matthew D. Keenan, Robert T. Adams, Shook Hardy & Bacon, Kansas City, MO, Eva Marie Mannoia Weiler, Lael Alyn Awong, Shook Hardy & Bacon, Irvine, CA, Hildy M. Sastre, Shook Hardy & Bacon, Miami, FL, Michael Bonasso, Flaherty Sensabaugh & Bonasso, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

(Motions for Summary Judgment on Substantive Claims and Punitive Damages)

JOSEPH R. GOODWIN, District Judge.

Pending before the court is Boston Scientific Corporation's Motion for Summary Judgment [Docket 60], the Plaintiffs' Motion for Summary Judgment [Docket 62], and Boston Scientific Corporation's Motion for Partial Summary Judgment on Plaintiffs' Punitive Damages Claim [Docket 64]. For the reasons stated below, Boston Scientific Corporation's Motion for Summary Judgment [Docket 60] is GRANTED in part and DENIED in part, the Plaintiffs' Motion for Summary Judgment [Docket 62] is GRANTED in part and DENIED in part, and Boston Scientific Corporation's Motion for Partial Summary Judgment on Plaintiffs' Punitive Damages Claim [Docket 64] is DENIED.

I. Background

This case is one of more than 60,000 assigned to me by the Judicial Panel on Multidistrict Litigation. These cases involve the use of transvaginal surgical mesh to treat pelvic organ prolapse and stress urinary incontinence. In this particular case, plaintiff Roseanne Sanchez was implanted with two products manufactured by defendant Boston Scientific Corporation (“BSC”): the Pinnacle Pelvic Floor Repair Kit (the “Pinnacle”) to treat pelvic organ prolapse and the Advantage Transvaginal Mid–Urethral Sling System (the “Advantage”) to treat stress urinary incontinence. The plaintiffs allege that as a result of implantation with these products Ms. Sanchez experienced several complications, including vaginal discharge, painful intercourse, bleeding, pelvic pain, and cramping. (See Pls.' Mem. in Supp. of Pls.' Mot. for Partial Summ. J. [Docket 63], at 1). The plaintiffs currently advance the following claims: negligence, strict liability (defective design, manufacturing defect, and failure to warn), loss of consortium, breach of express and implied warranties, fraudulent concealment, and punitive damages. (See Short Form Compl. [Docket 1] ¶ 13).

The parties have filed several motions for summary judgment. I have already denied BSC's motion for summary judgment on the statute of limitations. See Sanchez v. Boston Scientific Corp., No. 2:12–cv–05762, 2014 WL 202787 (S.D.W.Va. Jan. 17, 2014). Currently before me are motions by BSC for summary judgment on all claims, and the plaintiffs' motions for summary judgment on express preemption, implied preemption, and the learned intermediary doctrine.

II. Legal Standard

To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of a summary judgment motion. See Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) ; Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985), abrogated on other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

III. Choice of Law

While this case was filed directly into this multidistrict litigation, I have already decided that California choice-of-law rules apply here. See Sanchez, 2014 WL 202787, at *4. The parties agree that California law applies to the substantive claims in this case. Therefore, I will apply California law to the plaintiffs' substantive claims. The parties disagree, however, whether to apply California law or Massachusetts law to the punitive damages claim. As I explain below, California law also applies to the punitive damages claim.

IV. Analysis

A. Failure to Warn

The plaintiffs allege that BSC failed to warn about particular risks associated with the Pinnacle and Advantage devices. BSC moves for summary judgment, contending that the plaintiffs have failed to adduce any evidence that inadequate or absent warnings caused their injuries. In a separate motion, the plaintiffs move for summary judgment by arguing that the learned intermediary doctrine is inapplicable in this case. I will address each motion separately, beginning with the plaintiffs' contention that the learned intermediary doctrine is inapplicable.

1. Learned Intermediary Doctrine

The plaintiffs argue that the learned intermediary doctrine “does not apply when a plaintiff alleges that a manufacturer failed to adequately warn a plaintiff's doctor of a device's risks.” (See Pls.' Mem. of Law in Supp. of Pls.' Mot. for Partial Summ. J. [Docket 63], at 7). They contend that the learned intermediary doctrine is inapplicable where it is alleged that product warnings were inadequate. (See id. at 8). The plaintiffs are incorrect, but they are not at fault. In my opinion, several courts applying California law have recently confused this issue.

In order to establish a claim for failure to warn, whether in strict liability or in negligence, a plaintiff must prove that the defendant's warnings were inadequate, and that the inadequate warnings were a substantial factor in causing the plaintiff's harm. See Anderson v. Owens–Corning Fiberglas Corp., 53 Cal.3d 987, 281 Cal.Rptr. 528, 810 P.2d 549, 558 (1991) (stating that both negligence and strict liability require showing that warnings were inadequate); Rosa v. City of Seaside, 675 F.Supp.2d 1006, 1011 (N.D.Cal.2009) (listing elements of negligence and strict liability failure-to-warn claims). It is the plaintiff's burden to demonstrate that he or she would have acted differently if provided with adequate warnings. See, e.g., Ramirez v. Plough, Inc., 6 Cal.4th 539, 25 Cal.Rptr.2d 97, 863 P.2d 167, 177 (1993) (holding that plaintiff failed to produce evidence of causation in failure-to-warn claim where plaintiff could not read English-language warning).

The learned intermediary rule is part and parcel of a failure-to-warn analysis in California. Under the learned intermediary rule, manufacturers of prescription drugs and medical devices satisfy their duty to warn if they provide adequate warnings to prescribing physicians, rather than patients. See Carlin v. Superior Court, 13 Cal.4th 1104, 56 Cal.Rptr.2d 162, 920 P.2d 1347, 1354 (1996) (“[I]n the case of prescription drugs, the duty to warn runs to the physician, not to the patient.”); Brown v. Superior Court, 44 Cal.3d 1049, 245 Cal.Rptr. 412, 751 P.2d 470, 477 n. 9 (1988) (“It is well established that a manufacturer fulfills its duty to warn if it provides adequate warning to the physician.”). A pharmaceutical manufacturer is not required to warn anybody other than prescribing physicians about the dangerous propensities of their prescription drugs and medical devices. Period.

In order to satisfy the element of causation under the learned intermediary doctrine, a plaintiff must demonstrate that the prescribing physician would have acted differently had he or she received adequate warnings. See Motus v. Pfizer Inc., 196 F.Supp.2d 984, 995 (C.D.Cal.2001) ( “Pfizer may prevail in its motion for summary judgment if Ms. Motus has failed to adduce evidence that Dr. Trostler would have acted differently had Pfizer provided an adequate warning[.]”); Georges v. Novartis Pharm. Corp., 988 F.Supp.2d 1152, 1157–58 (C.D.Cal.2013) (holding that plaintiff was required to prove that her injuries “resulted from Defendant's inadequate warnings” and upholding jury verdict for plaintiff where treating physician “testified that he changed his treatment practices once he was aware of the [product] risk”); Plummer v. Lederle Labs., Div. of Am. Cyanamid Co., 819 F.2d 349, 358 (2d Cir.1987) (applying California law) (noting that plaintiff had failed to prove proximate causation where he “failed to prove that a proper warning would have altered the doctor's conduct”); Conte v. Wyeth, Inc., 168 Cal.App.4th 89, 85 Cal.Rptr.3d 299, 308–09 (Ct.App.2008) (denying...