Sluis v. Ethicon, Inc.

Citation529 F.Supp.3d 1004
Decision Date26 March 2021
Docket Number4:20-CV-04165-RAL
Parties Kristen Lee SLUIS, and Greg Sluis, Plaintiffs, v. ETHICON, INC., Ethicon, LLC, and Johnson & Johnson, Defendants.
CourtU.S. District Court — District of South Dakota

Mark W. Haigh, Evans Haigh & Hinton LLP, Sioux Falls, SD, Alexandra K. Hughes, Pro Hac Vice, Henry G. Garrard, III, Pro Hac Vice, James B. Matthews, III, Pro Hac Vice, Josh B. Wages, Pro Hac Vice, Sara Schramm, Pro Hac Vice, Thomas F. Hollingsworth, Pro Hac Vice, Blasingame, Burch, Garrard & Ashley, P.C., Athens, GA, for Plaintiffs.

Daniel E. Ashmore, Katelyn A. Cook, Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, SD, Anita Modak-Truran, Pro Hac Vice, Butler Snow, LLP, Nashville, TN, Kari L. Sutherland, Pro Hac Vice, Butler Snow LLP, Oxford, MS, Pamela L. Ferrell, Pro Hac Vice, Butler Snow LLP, Atlanta, GA, for Defendants.



This case began in the Southern District of West Virginia as part of the Ethicon multidistrict litigation (MDL). It is one of thousands of cases involving injuries patients allegedly suffered after being implanted with pelvic mesh products designed, manufactured, and sold by Ethicon, Inc., a wholly owned subsidiary of Johnson & Johnson. Plaintiffs Kristen and Greg Sluis sued Ethicon, Inc., Ethicon, LLC, and Johnson & Johnson (collectively "Ethicon"), claiming that two Ethicon products implanted in Mrs. Sluis were defectively designed and had inadequate warnings. Two motions filed in the MDL litigation remain pending and are now ripe for decision by this Court. This Court held a motion hearing on March 5, 2021. For the reasons explained below, this Court grants partial summary judgment to Ethicon.

I. Background1

In late September 2009, Dr. Kevin D. Benson implanted in Mrs. Sluis two Ethicon devices—the TVT to treat her stress urinary incontinence and the Prolift +M to treat her pelvic organ prolapse. Doc. 68 at 2 at ¶ 1; Doc. 29 at 4. According to the Sluises, the Prolift +M caused Mrs. Sluis serious injuries which have required multiple surgical mesh removal procedures. Doc. 70 at 1. In February 2012, the Judicial Panel on Multidistrict Litigation opened an MDL to coordinate pretrial proceedings of all Ethicon pelvic mesh-related litigation ( Ethicon MDL). In re: Am. Med. Sys., Inc. Pelvic Repair Sys. Prods. Liab. Litig., 844 F. Supp. 2d 1359, 1360–62 (J.P.M.L. 2012) ; In re Ethicon. Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 508 (S.D.W. Va. 2014). The Ethicon MDL was assigned to the Honorable Joseph R. Goodwin in the Southern District of West Virginia. Am. Med. Sys., 844 F. Supp. 2d at 1362.

In August 2012, the Sluises filed this case in the Southern District of West Virginia as part of the Ethicon MDL. Doc. 1. Their short-form complaint pleaded the following claims: Negligence (Count I); strict-liability – manufacturing defect (Count II); strict liability – failure to warn (Count III); strict liability – defective product (Count IV); strict liability – design defect (Count V); common law fraud (Count VI); fraudulent concealment (Count VII); constructive fraud (Count VIII); negligent misrepresentation (Count IX); negligent infliction of emotional distress (Count X); breach of express warranty (Count XI); breach of implied warranty (Count XII); violation of consumer protection laws (Count XIII); gross negligence (Count XIV); unjust enrichment (Count XV); loss of consortium (Count XVI); punitive damages (Count XVII); discovery rule and tolling (Count XVIII). Doc. 1. Judge Goodwin assigned the cases in the Ethicon MDL to various "waves" to be prepared for trial. Doc. 28. The Sluises’ case was assigned to Wave 10. Doc. 28.

There were two motions filed while this case was pending in West Virginia that remain pending today. First, Ethicon moved to exclude the case-specific opinions of Dr. Alan Garely, a urogynecologist. Doc. 66. Second, Ethicon moved for summary judgment on Counts I–IV and Counts VI–XV of the Sluises’ complaint. Doc. 67. The Sluises opposed the motion as to Counts I, III, IV, and XIV, but did not oppose summary judgment on the other counts addressed in Ethicon's motion. Doc. 70.

In October 2020, Judge Goodwin transferred the Sluises’ case to this Court. Doc. 79. This Court ordered the parties to stipulate to all the relevant pleadings from the Ethicon MDL and to advise how they wish to proceed with this case. Doc. 95. Ethicon responded that in addition to the motions just discussed, this Court must rule on its motions challenging the opinions of the Sluises’ general experts. Doc. 114. In the Ethicon MDL, Judge Goodwin instructed the parties to file one Daubert 2 motion per challenged general expert and to file these motions in the main MDL rather than the individual member cases. Doc. 28 at 5–6. According to Ethicon, Judge Goodwin ruled on the parties’ general Daubert motions in Wave 1 and then adopted these rulings in Waves 2–7 while also reserving arguments not addressed by the Wave 1 order for resolution by the trial court. Doc. 114 at 5. In Wave 10, Ethicon filed motions to exclude certain opinions of the general experts that many of the plaintiffs, including the Sluises, relied upon. Doc. 114 at 5. Judge Goodwin, however, did not enter orders on any Daubert motions in Wave 10. Doc. 114 at 5–6. This Court will permit the parties to file separate motions on each expert setting out the remaining issues for disposition by this Court, but this Court intends to rule as Judge Goodwin has on issues not unique to this particular case. Very recently, the Sluises moved to strike the non-retained experts designated by Ethicon, arguing that they exceed the five-expert limit set by Judge Goodwin. Doc. 118.

II. Motion for Summary Judgement
A. Standard of Review

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "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). Rule 56(a) places the burden initially on the moving party to establish the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met that burden, the nonmoving party must establish that a material fact is genuinely disputed either by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence ... of a genuine dispute." Fed. R. Civ. P. 56(c)(1)(A), (B) ; Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1145–46 (8th Cir. 2012) ; see also Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005) (stating that a nonmovant may not merely rely on allegations or denials). A party opposing a properly supported motion for summary judgment "may not merely point to unsupported self-serving allegations, but must substantiate his allegations with sufficient probative evidence that would permit a finding in his favor, without resort to speculation, conjecture, or fantasy." Reed v. City of St. Charles, 561 F.3d 788, 790–91 (8th Cir. 2009) (cleaned up and citations omitted). In ruling on a motion for summary judgment, the facts and inferences fairly drawn from those facts are "viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam)).

B. Analysis

The Sluises do not contest summary judgment on Count II, Counts VI–XIII, and Count XV. Partial summary judgment for Ethicon will therefore enter on these claims. The Sluises also do not contest entry of summary judgment on claims related to the TVT, so partial summary judgment for Ethicon enters on any such claims. As to the other claims upon which Ethicon sought summary judgment, Ethicon argues that the Sluises’ failure-to-warn claims fail because they can't show causation, that South Dakota does not recognize the Sluises’ claim for "strict liability – defective product," and that the Sluises’ negligence and gross negligence claims are duplicative of their strict liability claims. This Court addresses these arguments in turn.

1. Law on causation for failure-to-warn claims

The parties agree that South Dakota law applies because South Dakota is where Mrs. Sluis lives and underwent the surgery. Doc. 68 at 2–4; Doc. 70 at 2. South Dakota recognizes failure-to-warn claims under both negligence and strict liability, and the Sluises have pleaded claims under both theories. See Nationwide Mut. Ins. Co. v. Barton Solvents, Inc., 855 N.W.2d 145, 149–152 (S.D. 2014) (considering a failure-to-warn claim under both negligence and strict liability). Negligent failure-to-warn and strict liability failure-to-warn are distinct causes of action, but both torts require the plaintiff to prove that the failure to warn was the legal cause of their injuries. Karst v. Shur-Co., 878 N.W.2d 604, 613 (S.D. 2016) ; Nationwide Mut. Ins. Co., 855 N.W.2d at 150–51 ; Burley v. Kytec Innovative Sports Equip., Inc., 737 N.W.2d 397, 410–11 (S.D. 2007). "Legal cause means an immediate cause which, in the natural or probable sequence, produces the injury complained of. For legal cause to exist, the harm suffered must be a foreseeable consequence of the act complained of." Berg v. Johnson & Johnson Consumer Cos., 983 F. Supp. 2d 1151, 1160 (D.S.D. 2013) (cleaned up and citation omitted). "[T]o prove causation in a failure-to-warn claim, a plaintiff must show that adequate warnings would have made a difference in the outcome, that is, that they would have been followed." Karst, 878 N.W.2d at 613 (cleaned up and citation omitted). "[T]he evidence must be such as to support a reasonable...

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