Balura v. Ethicon, Inc.

CATHY BALURA, et al., Plaintiffs, v. ETHICON, INC., et al., Defendants.

3:19-CV-1372 (LEK/ML)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

February 19, 2020

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs Cathy and Peter Balura are among the thousands of plaintiffs who have sued defendants Ethicon, Inc. and Johnson & Johnson (together, "Defendants") for injuries caused by Defendants' allegedly defective pelvic mesh products. There are two issues currently before the Court. First, unopposed by Plaintiffs, Defendants have moved for partial summary judgment on thirteen causes of action listed in the complaint. See Dkt. Nos. 34 ("SJ Motion"); 35 ("SJ Memorandum"); 39 ("Plaintiffs' SJ Response"); see also Dkt. No. 1 ("Short Form Complaint"). And second, Defendants move to exclude the opinions and testimony of Plaintiff's case-specific expert, Michael T. Margolis, M.D. ("Dr. Margolis"). Dkt. Nos. 37 ("Motion to Exclude"); 38 ("Motion to Exclude Memorandum"); see also Dkt. Nos. 40 ("Opposition"); 41 ("Reply"). For the following reasons, the Court dismisses the thirteen causes of action and grants in part and denies in part the Motion to Exclude.

II. BACKGROUND

This case is part of the massive products liability multi-district litigation ("MDL") against Defendants ongoing around the country. See In re Ethicon, Inc., Pelvic Repair System Products Liability Litigation, No. 12-MD-2327. The product at issue is "transvaginal surgical mesh" used primarily "to treat pelvic organ prolapse and stress urinary incontinence." In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., No. 13-CV-12719, 2017 WL 6345880, at *1 (S.D.W. Va. Dec. 11, 2017).

A. Facts

Cathy Balura lives with her husband, Peter, in Stamford, New York.¹ Dkt. No. 26 ("Plaintiff Profile Form"). In 2009, Mrs. Balura was diagnosed with stress urinary incontinence ("SUI"). Opp'n at 4.² To treat the SUI, on May 7, 2009, Mrs. Balura had surgery in which doctors implanted Defendants' Gynecare transvaginal tape ("TVT") in her pelvis.³ Id. This surgery took place in Oneonta, New York. Dkt. No. 37-1.

Nine to twelve months after the surgery, Mrs. Balura's SUI returned. Dkt. No. 37-2 ("Plaintiff Fact Sheet") at 7. Additionally, when she resumed having a sexual relationship with Mr. Balura, she experienced "sharp pain" and Mr. Balura felt "[s]harp edges" of the mesh inside of Mrs. Balura. Dkt. Nos. 37-3 ("Cathy Balura Deposition Excerpts") at 94-95; 37-4 ("Peter Balura Deposition Excerpts") at 20, 46.

On April 19, 2013, Mrs. Balura saw Dr. Robert Lobel, complaining of vaginal bleeding, dyspareunia (pain during intercourse), and "feeling something in the vagina." Dkt. No. 40-1("Opposition Exhibits") at 10-11.⁴ She described how the TVT had helped with her SUI for almost a year, but that now she was again having problems with incontinence. Id. She also described having difficulty emptying her bladder and that she had to change positions to do so. Id. Dr. Lobel examined Mrs. Balura and found that she suffered from eroded vaginal mesh, dyspareunia, recurrent urinary incontinence (stress and urge) and a symptomatic fibroid uterus. Id. However, relevant to the Motion to Exclude addressed below, Dr. Lobel testified in his deposition that he had not found "any excessive contraction or scarification around the mesh" during his vaginal exam of Mrs. Balura. Dkt. No. 37-7 ("Lobel Deposition Excerpts") at 29. Dr. Lobel also testified that he had not found chronic inflammation, id. at 35, nor seen "any indication in the records of any evidence that Ms. Balura had bladder outlet obstruction," id. at 56.

To address these symptoms, Mrs. Balura had a "revision" surgery on May 21, 2013 at Albany Memorial Hospital in Albany, New York. Dkt. No. 37-5. During the surgery, Dr. Lobel removed the eroded part of Defendants' TVT and performed a vaginal hysterectomy. Id. After the revision surgery, Mrs. Balura continued to experience incontinence and pain during intercourse. Opp'n Exs. at 34.

B. Relevant Procedural History

In February 2012, all the cases related to the In re Ethicon, Inc., Pelvic Repair System Products Liability Litigation, MDL No. 2327 were transferred to the District Court for the Southern District of West Virginia (the "MDL court"). See In re: Am. Med. Sys., Inc., Pelvic Repair Sys. Prod. Liab. Litig., 844 F. Supp. 2d 1359, 1361 (U.S. Jud. Pan. Mult. Lit. 2012). TheHonorable Joseph R. Goodwin, U.S. District Judge, continues to preside over the In re Ethicon MDL in that district.

On November 16, 2012, Plaintiffs filed this lawsuit in the Southern District of West Virginia. Short Form Compl. The case proceeded through discovery, and, on May 22, 2017, Plaintiffs named their expert witnesses, including four general experts and Dr. Margolis as their case-specific expert. Opp'n Exs. at 58-58.

On August 8, 2017, Defendants moved for partial summary judgment. SJ Mot. However, on August 22, 2017, Plaintiffs responded that they "did not intend to pursue any of the claims on which [Defendants] sought partial summary judgment," and agreeing to dismiss those causes of action. Pls.' SJ Resp. at 1.

During that same period, on August 15, 2017, Defendants filed their Motion to exclude Dr. Margolis' testimony. Mot. to Exclude. Plaintiffs filed their Opposition on August 29, 2017, and Defendants filed their Reply on September 5, 2017. See Docket.

On October 30, 2019, Judge Goodwin ordered this case transferred to this Court, "the venue from which [it] arise[s]," for resolution. Dkt. No. 60 ("Transfer Order").

C. Dr. Margolis' Expert Report

Before turning to the applicable law, the Court summarizes Dr. Margolis' expert report.

In preparing his report, Dr. Margolis reviewed the medical records, depositions, and deposition exhibits in this case, and he relied on his "training, education, and experience." Dkt. No. 37-8 ("Margolis Report") at 1. Apparently, Dr. Margolis did not examine Mrs. Balura herself. See generally Id.

Dr. Margolis described Mrs. Balura's medical history, including her initial surgery to implant the TVT and subsequent complications. Id. at 1-2. Then he stated that, "[t]o [sic]reasonable degree of medical certainty, Ms. Balura's pelvic injuries were caused by the defective TVT device." Id. at 2.

To reach his conclusion, Dr. Margolis described Mrs. Balura's symptoms, "including delayed erosion, dyspareunia, husband dyspareunia, recurrence of her incontinence from failure of the sling and the need for its removal, partial bladder outlet obstruction and chronic inflammation from the sling." Id. at 3. He then used a "differential diagnosis" to "rule out any other potential causes of Ms. Balura's pelvic injuries" besides Defendants' TVT sling.⁵ Id. at 2.

Dr. Margolis next opined that Mrs. Balura "is at risk for future delayed erosions." Id. at 3. He also stated that "[s]he will continue to have dyspareunia from the sling and its effects on the body" and "[s]he will continue to have worsening urinary incontinence which will eventually require another operative procedure to correct." Id. Finally, Dr. Margolis opined that "[f]uture surgeries will be far more complicated in her because of the dense scar tissue caused by the sling, and more likely than not will increase scarring, related pain and tissue damage." Id.

III. DISCUSSION

The Court addresses, in turn: (A) the choice of law issues in this case; (B) Plaintiffs' request for dismissal; and (C) Defendants' motion to exclude.

A. Choice of Law

As a preliminary matter, the Court must determine which jurisdiction's law governs this case. It does so bearing in mind that orders previously issued by an MDL court should generally remain binding once an individual case is sent back to its home venue. See Deutsch v. Novartis Pharm. Corp., 768 F. Supp. 2d 420, 428 (E.D.N.Y. 2011) ("[In an MDL,] the law of the casedoctrine 'posits that when a court decides a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'") (quoting Arizona v. California, 460 U.S. 605, 618 (1983)).

"This case is based on diversity jurisdiction. Federal law thus controls procedural issues and state law controls substantive issues." Sanchez v. Bos. Sci. Corp., No. 12-CV-5762, 2014 WL 202787, at *3 (S.D.W. Va. Jan. 17, 2014); see also Jazini v. Nissan Motor Co., 148 F.3d 181, 183 (2d Cir. 1998) ("In diversity cases the federal courts generally apply state law in deciding substantive questions and federal law in deciding procedural ones."). For procedural issues governed by federal law, the Court applies this circuit's "interpretations of federal law, not the constructions of federal law of the transferor circuit." Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68, 82 (2d Cir. 2018); see also Adams v. Bos. Sci. Corp., 177 F. Supp. 3d 959, 962 (S.D.W. Va. 2016) ("When analyzing questions of federal law, the transferee court should apply the law of the circuit in which it is located."). And the MDL court previously ruled that, when determining which state's law should govern substantive issues, courts should look to the choice of law provisions in "the place where the plaintiff was implanted with the product." In re Ethicon, Inc., No. 12-MD-2327, 2014 WL 346717, at *7 (S.D.W. Va. Jan. 30, 2014).

Because Mrs. Balura's implant surgery took place in New York State, see Dkt. No. 37-1, New York choice of law rules apply. Defendants argue—and Plaintiffs do not dispute—that under New York choice of law rules, New York tort law applies to Plaintiffs' claims. See SJ Mem. at 2 ("[T]he laws of New York apply to the claims addressed in this motion because . . . Ms. Balura was implanted with the TVT-O in New York.") (citing Padula v. Lilarn Props. Corp., 644 N.E.2d 1001, 1002 (N.Y. 1994)) (other citations omitted). In the absence of any objection from Plaintiffs, and because all the significant contacts lie in the state of NewYork, see Padula, 644 N.E.2d at 1002 (describing how New York choice of law rules...