Turner v. Ethicon, Inc., Case No.: 1:20-cv-876-ACA

• Court: United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
• Writing for the Court: ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
• Decision Date: 29 July 2020
• Docket Number: Case No.: 1:20-cv-876-ACA
• Parties: CHRISTIE TURNER, Plaintiff, v. ETHICON, INC. and JOHNSON & JOHNSON, Defendants.

CHRISTIE TURNER, Plaintiff,
v.
ETHICON, INC. and JOHNSON & JOHNSON, Defendants.

Case No.: 1:20-cv-876-ACA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION

July 29, 2020

MEMORANDUM OPINION AND ORDER

This matter is before the court on Defendants Ethicon, Inc. and Johnson & Johnson's motion for summary judgment on all of Plaintiff Christie Turner's claims. (Doc. 19). Defendants also filed a motion to strike Ms. Turner's expert designation, or in the alternative, to exclude the opinions and testimony of Dr. W. Scott Webster. (Doc. 21).

A physician implanted Defendants' TVT pelvic mesh device in Ms. Turner to treat urinary incontinence. Ms. Turner filed suit against Defendants in a MDL proceeding, asserting the following state law claims arising from alleged complications associated with the pelvic mesh product:

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Count One: Negligence

Count Two: Strict Liability—Manufacturing Defect

Count Three: Strict Liability—Failure to Warn

Count Four: Strict Liability—Defective Product

Count Five: Strict Liability—Design Defect

Count Six: Common Law Fraud

Count Seven: Fraudulent Concealment

Count Eight: Constructive Fraud

Count Nine: Negligent Misrepresentation

Count Ten: Negligent Infliction of Emotional Distress

Count Eleven: Breach of Express Warranty

Count Twelve: Breach of Implied Warranty

Count Thirteen: Violation of Consumer Protection Laws

Count Fourteen: Gross Negligence

Count Fifteen: Unjust Enrichment

(Doc. 1 at 4-5; see In re Ethicon, Inc., Pelvic Repair System Products Liability Litigation, 2:12-MD-02327).¹ After pretrial proceedings in the MDL, the court presiding over the MDL remanded Ms. Turner's case to this court for resolution of the pending motions. (Doc. 28).

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Defendants seek summary judgment on all of Ms. Turner's claims. Ms. Turner has conceded her claims for negligent infliction of emotional distress (Count Ten); breach of express warranty (Count Eleven); breach of implied warranty (Count Twelve); violation of consumer protection laws (Count Thirteen); and unjust enrichment (Count Fifteen). (Doc. 50). Therefore, this opinion concerns only Ms. Turner's remaining claims (Counts One through Nine and Fourteen).

Because all of Ms. Turner's remaining claims are barred by the applicable two-year statute of limitations, the court GRANTS Defendants motion for summary judgment (doc. 19) and WILL ENTER judgment as a matter of law in favor of Defendants and against Ms. Turner on all of the claims that she has not expressly conceded.

Because the court does not reach the merits of Ms. Turner's claims, the court DENIES as MOOT Defendants' motion to strike, or in the alternative, to exclude Dr. Webster's testimony. (Doc. 21).

I. RELEVANT BACKGROUND

On a motion for summary judgment, the court "draw[s] all inferences and review[s] all evidence in the light most favorable to the non-moving party." Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (quotation marks omitted).

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On November 17, 2003, Ms. Turner's doctor implanted her with Defendants' Gynecare TVT pelvic mesh product to treat a dropped bladder and urinary incontinence. (Doc. 19-1 at 3). At the end of 2004, Ms. Turner first experienced pain, pressure, and scarring as a result of the implant procedure and sought treatment for those symptoms. (Doc. 19-1 at 4-5; Doc. 19-2 at 4). In 2005, prior to a revision procedure, the doctor who implanted the TVT mesh product told Ms. Turner that the pain she was experiencing was related to the mesh. (Doc. 19-1 at 5; Doc. 19-2 at 5). Ms. Turner filed suit on December 31, 2018. (Doc. 1).

II. DISCUSSION

In deciding a motion for summary judgment, the court must determine whether, accepting the evidence in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Hamilton, 680 F.3d at 1318. "[T]here is a genuine issue of material fact if the nonmoving party has produced evidence such that a reasonable factfinder could return a verdict in its favor." Looney v. Moore, 886 F.3d 1058, 1062 (11th Cir. 2018) (quotation marks omitted).

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Defendants move for summary judgment, arguing that Ms. Turner's claims are barred by the applicable statute of limitations. (Doc. 20 at 4-6).² The court agrees.

Under Alabama law,³ Ms. Turner's negligence and fraud claims are subject to a two-year statute of limitations. See Ala. Code § 6-2-38(l) ("All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years."). This two-year period begins to run "when there has occurred a manifest, present injury," which means there are "observable signs or symptoms . . . the existence of which is...