Sharp v. Ethicon, Inc.
| Decision Date | 24 March 2020 |
| Docket Number | CASE NO. 2:20-CV-2028 |
| Parties | REBECCA SHARP PLAINTIFF v. ETHICON, INC. and JOHNSON & JOHNSON DEFENDANTS |
| Court | U.S. District Court — Western District of Arkansas |
Currently before the Court are a Motion for Partial Summary Judgment (Doc. 20) and Brief in Support (Doc. 21) filed by Defendants Ethicon, Inc. and Johnson & Johnson. Plaintiff Rebecca Sharp filed a Response in Opposition (Docs. 22 & 23) and Defendants filed a joint Reply (Doc. 25), making the Motion ripe for decision.
This case was recently transferred to this Court from the District Court for the Southern District of West Virginia, where the Honorable Joseph R. Goodwin was presiding over seven separate multi-district litigations ("MDL") concerning products sold by the Defendants. This case was related to one of the seven MDLs. See Transfer Order, Doc. 30. The Court has now considered the briefing on Defendants' Motion for Partial Summary Judgment and finds that the Motion should be GRANTED for the reasons described herein.
The short-form Complaint (Doc. 1)—which is the operative complaint filed in this case—lists 18 separate causes of action but very few facts. Defendants move for summary judgment on Counts II, III, IV, VII, X—XIII, and XV. Plaintiff Sharp agrees that all of those claims lack merit except for Count III. Therefore, Counts II, IV, VII, X—XIII, and XV will be dismissed with prejudice on summary judgment. Ms. Sharp also states in her Response to the Motion that she will "not be proceeding" with Counts VI, VIII, IX, and XIV, so those claims will be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). The only remaining claim to be decided on summary judgment is Count III, which is a strict liability claim for failure to warn.
Ms. Sharp is a 49-year-old woman who was previously diagnosed with symptomatic stress urinary incontinence, a condition that results in involuntary leakage of urine.1 To treat this condition, her doctor, Dr. David Crownover, recommended that she undergo surgery and be implanted with a medical device called a TVT-Obturator ("TVT-O"). Dr. Crownover performed the surgery implanting the TVT-O at a hospital in Siloam Springs, Arkansas, on February 15, 2010. The Court understands that the device is a polypropylene mesh product commonly described as "tension-free vaginal tape" that is fixed in the pelvis through insertion and placement in the obturator membranes. (Doc. 22-2, pp. 5, 7).
Following the surgery, Ms. Sharp claims that she developed "pain and dyspareunia . . . that has been ongoing to the present day," which she attributes to the TVT-O device. (Doc. 23, p. 2).2 In Count III, Ms. Sharp asserts that the Defendants should be held strictly liable for their failure to provide adequate warnings of the risks associated with the device.She argues that a genuine, material dispute exists as to whether Dr. Crownover was adequately warned of the risks associated with the TVT-O device. Ms. Sharp contends that nothing in Defendants' patient brochures related to the device indicated that it could cause dyspareunia and frequent, severe, or permanent pelvic pain. She maintains that under the so-called "learned intermediary rule," which Arkansas law recognizes, Defendants were obligated to provide sufficient warnings about the device to Dr. Crownover. She believes that if her doctor had been given complete information about the risks of the device and passed those risks on to her, she would have decided not to have the surgery.
Defendants point out that Dr. Crownover testified in his deposition that he did not rely on the manufacturer's product warnings in making the recommendation to Ms. Sharp that she have the surgery and be implanted with the device. Defendants argue that without evidence of such reliance by Dr. Crownover, Ms. Sharp will be unable to establish at trial the necessary causal connection between the (allegedly inadequate) warnings and her post-surgery injuries. Further, Defendants maintain that Dr. Crownover testified that even if different product warnings had been offered to him, he would not have changed his mind about recommending the implantation of the device, as he believed at the time and believes today that the TVT-O device is safe and effective.
Below, the Court will begin its discussion by determining which state's substantive law applies to the dispute. Ms. Sharp asserts that Arkansas law applies, while Defendants argue in favor of Oklahoma law. Then, the Court will take up whether Ms. Sharp's failure-to-warn claim should survive summary judgment.
The standard for summary judgment is well established. Under Federal Rule of Civil Procedure 56(a), "[t]he court shall 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." The Court must review the facts in the light most favorable to the opposing party and give that party the benefit of any inferences that can be drawn from those facts. Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1997). The moving party bears the burden of proving the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat'l. Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999).
Once the moving party has met its burden, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(c)). However, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient" to survive summary judgment. Anderson v. Durham D&M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Rather, in order for there to be a genuine issue of material fact that would preclude summary judgment, the non-moving party must produce evidence "such that a reasonable jury could return a verdict for the nonmoving party." Allison v. Ftexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson, 477 U.S. at 248).
A federal court sitting in diversity applies the choice of law principles of the state in which it sits. See Platte Valley Bank v. Tetra Fin. Grp., LLC, 682 F.3d 1078, 1082 (8th Cir. 2012); Prudential Ins. Co. of Am. v. Kamrath, 475 F.3d 920, 924 (8th Cir. 2007). In tort cases, Arkansas courts look to the doctrine of lex loci delicti—or the law of the place where the wrong occurred—as well as to Professor Robert A. Leflar's five choice-influencing considerations. See Gomez v. ITT Educ. Servs., Inc., 348 Ark. 69, 77 (2002) (). "These five factors are as follows: 1) predictability of results; 2) maintenance of interstate and international order; 3) simplification of the judicial task; 4) advancement of the forum's governmental interests; and 5) application of the better rule of law." Id. at 76-77.
Application of the lex loci delicti doctrine plainly counsels in favor of using Arkansas law. The implantation of the TVT-O device—which allegedly led to all of Ms. Sharp's injuries—took place in Arkansas. Defendants argue that even though the alleged wrong took place in Arkansas, this Court should apply Oklahoma law because Ms. Sharp "is a long-time resident of Oklahoma and works in Oklahoma" and "has sought treatment for her injuries in Oklahoma." (Doc. 21, p. 3). Defendants' arguments are unpersuasive to the Court and do not undermine the fact that the lex loci of this case is Arkansas.
Moving on to the Leflar factors, the Court believes that applying Arkansas substantive law to the dispute would best maintain the predictability of results. This is because in a case involving the surgical implantation of an allegedly defective medicaldevice, it is expected—due to the application of the lex loci delicti doctrine—that the law of the state where the surgery took place would govern the dispute. The Court also believes that the interest in the maintenance of interstate order is well served by applying Arkansas law because Arkansas has significant contacts with the Plaintiff, her doctor, and the hospital where the allegedly defective medical device was implanted. Finally, Defendants concede that "Arkansas has an interest in protecting those injured by negligent conduct within its borders." Id. at p. 4 (quoting Lane v. Celadon Trucking, Inc., 543 F.3d 1005, 1011 (8th Cir. 2008)). For all these reasons, the Court will apply Arkansas law to Count III.3
Under Arkansas law, "the manufacturer of a product has a duty to warn the user of dangers inherent in that product under the theories of strict liability, negligence and breach of warranty, and the comment k defense."4 Hill v. Searle Labs., 884 F.2d 1064, 1070 (8th Cir. 1989). However, Arkansas law also acknowledges that one of the exceptions to a manufacturer's duty to warn is "the learned intermediary rule, which assumes that it is reasonable for a manufacturer to rely on the prescribing physician to forward to the patient, who is the ultimate user of the drug products, any warnings regarding their possible side effects." Id. This rule recognizes that "medical ethics and practice dictate that the doctor must be an intervening and independent party betweenpatient and drug manufacturer," that "the information regarding risks is often too technical for a patient to make a reasonable choice," and that "it is virtually impossible in many cases for a manufacturer to directly warn each patient." Id. "Thus, a warning to the [physician] is deemed a warning to the patient; the manufacturer need...
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