Tucker v. Ethicon, Inc.
| Decision Date | 05 February 2021 |
| Docket Number | No. 4:20-CV-1543 RLW,4:20-CV-1543 RLW |
| Parties | DAWN TUCKER, et al., Plaintiffs, v. ETHICON, INC., et al. Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Defendants Ethicon, Inc. and Johnson & Johnson's (collectively, "Defendants") Motion for Partial Summary Judgment (ECF No. 35). Plaintiffs Dawn Tucker ("Ms. Tucker") and Mark Tucker (collectively, "Plaintiffs") oppose the Motion in part. Defendants did not file a reply and the Motion is fully briefed. For the following reasons, the Motion will be granted in part and denied in part.
The Plaintiffs are a married couple who reside in Missouri. On November 15, 2011, Ms. Tucker underwent implantation of a Johnson & Johnson Gynecare TVT Secur ("TVT-S") pelvic mesh device. The TVT-S device is used to treat stress urinary incontinence. Dr. Jack Ricketts, M.D., performed the surgery in St. Louis, Missouri. The Defendants designed, manufactured, and/or sold the TVT-S. The TVT-S allegedly caused various injuries to Ms. Tucker, including vaginal pain, pelvic pain, severe pain with intercourse, recurrence of incontinence, urinary tract infections, urinary frequency and urgency, and urinary retention. (ECF No. 35-1 at 5-6.)1 Ms. Tucker alleges that the "bodily injuries related to the mesh often brings [her] to tears and it hascaused a loss of intimacy between" her and her husband, and has diminished her overall quality of law because of constant pain. (Id. at 6.) Ms. Tucker subsequently underwent two surgeries to remove or revise the pelvic mesh in 2012 and 2015, both performed in Missouri.
On September 23, 2016, Plaintiffs directly filed suit against Defendants on a Short Form Complaint in a multidistrict ligation ("MDL"), In re: Ethicon, Inc. Pelvic Repair System Products Liability Litigation, MDL No. 2327, in the U. S. District Court for the Southern District of West Virginia. The MDL relates to allegedly defective pelvic mesh products including the TVT-S. Plaintiffs' Short Form Complaint asserts the following claims against Defendants:
The case was transferred from the MDL to this Court on October 27, 2020, and reassigned on November 4, 2020. In late October 2019, Defendants moved for partial summary judgment and Plaintiffs opposed the motion. That motion is presently before the Court. Defendants seek judgment on Count I (to the extent it is based on negligent failure to warn or negligent manufacturing defect), and on Counts II, III, IV, VI, VII, VIII, IX, X, XI, XII, XIII,XIV, and XV. Plaintiffs oppose the dismissal of some but not all of these claims. Defendants do not seek summary judgment on Plaintiffs' claims in Counts I (to the extent based on negligent design defect), V (strict liability design defect), XVI (loss of consortium), and XVII (punitive damages).
The Court may grant a motion for summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). The substantive law determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).2 Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion. Celotex Corp., 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party must set forth specific facts demonstrating there is a dispute as to a genuine issue of material fact, not the "mere existence of some alleged factual dispute." Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248. "The nonmoving party may not rely on allegations or denials," but rather "must substantiate her allegations with sufficient probative evidence that would permit a finding in her favor on more than mere speculation or conjecture." Carter v. Pulaski Cnty. Special Sch. Dist., 956 F.3d 1055, 1059 (8th Cir. 2020) ().
In passing on a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in her favor. Celotex Corp., 477 U.S. at 331. The Court's function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. "'Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" Torgerson, 643 F.3d at 1042 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
As an initial matter, Plaintiffs do not oppose Defendants' motion for summary judgment on Count IV (strict liability-defective product), Count VIII (constructive fraud), Count XI (breach of express warranty), Count XII (breach of implied warranty), and Count XV (unjust enrichment). (ECF No. 43 at 9, n.6.) As a result, Defendants' motion will be granted as to Counts IV, VIII, XI, XII, and XV and these claims will be dismissed with prejudice and not discussed further.
Defendants move for summary judgment on Plaintiff's manufacturing defect claims in Counts I, II, X, and XIV. Defendants state that under Missouri law, a plaintiff must prove that a deviation from the manufacturer's intended design caused her injury to establish a manufacturing defect claim under either a negligence or strict liability theory. Defendants cite Richcreek v. General Motors Corp., 908 S.W.2d 772, 776 (Mo. Ct. App. 1995) (); and Pitman v. Ameristep Corp., 208 F.Supp.3d 1053, 1061 (E.D. Mo. 2016) (). Defendants contend they are entitled to summary judgment on Plaintiffs' strict liability and negligence claims in Counts I, II, X, and XIV to the extent they are based on manufacturing defect, because Plaintiffs have no summary judgment evidence showing the Ethicon TVT-S deviated from its intended design or that such a deviation caused any injuries to Plaintiffs.
Plaintiffs concede this part of the Motion: "[I]n light of the [MDL] Court's consistent rulings across these pelvic mesh MDLs as to manufacturing defect, Plaintiffs do not intend to pursue a separate claim for 'manufacturing defect' as such claim has been construed by the [MDL] Court ([i.e.,] not manufactured in accordance with design, or departure from manufacturer's design specifications)."3 (ECF No. 43 at 9 n.4.) Plaintiffs further respond, however, that they "do intend to present evidence that Ethicon's manufacturing process and the raw materials used in the manufacture of the TVT-S product resulted in defects in the product, and in support of Plaintiffs' negligence, failure to warn, and punitive damages claims, which is consistent with the [MDL] Court's prior rulings." (Id. at 10 n.4.)4 Plaintiffs emphasize that by not contesting Ethicon's summary judgment motion as to "manufacturing defect," they "do not forego, waive or in any way agree that any evidence relating to Ethicon's manufacturing process and raw materials are [sic] restricted in any way." (Id.)
Because Plaintiffs do not contest Defendants' summary judgment motion on Counts I, II, X, and XIV as to claims based on manufacturing defect, i.e., any claim that the TVT-S product was not manufactured in accordance with design, or departed from the manufacturer's designspecifications, the Court will grant the summary judgment on Counts I, II, X, and XIV to the extent the claims are based on manufacturing defect.
Defendants move for summary judgment on Plaintiffs' strict liability and negligent failure to warn claims in Counts I, III, X, and XIV, asserting these claim fail on their merits as a matter of law due to lack of evidence that additional or different warnings from Ethicon would have prevented Plaintiffs' alleged injuries, as required to establish causation.
To establish a negligence or strict liability claim for failure to warn under Missouri law, Plaintiffs must establish, among other things, that the allegedly inadequate warning caused their alleged injuries. See Moore v. Ford Motor Co., 332 S.W.3d 749, 756, 764 (Mo. 2011) (en banc) (). To establish proximate causation in a failure to warn claim, Plaintiffs "must show that a warning would have altered the behavior of the individuals involved" in the incident. Id. at 761-63 (internal quotations omitted). There is a presumption under Missouri law that a warning, if given, will be heeded. Id.
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