Corder v. Ethicon, Inc.

473 F.Supp.3d 749

Virginia CORDER, Plaintiff,¹

v.ETHICON, INC., et al., Defendants.

No. 6:19-CV-273-REW

United States District Court, E.D. Kentucky, Southern Division. London.

Signed July 21, 2020

Lance W. Turner, Carroll & Turner, PSC, Monticello, KY, for Plaintiff.

Christy D. Jones, William M. Gage, Butler Snow LLP, Ridgeland, MS, David B. Thomas, Susan M. Robinson, Thomas Combs & Spann, PLLC, Charleston, WV, Susan J. Pope, Frost Brown Todd LLC, Lexington, KY, Kari L. Sutherland, Pro Hac Vice, Butler, Snow, O'Mara, Stevens & Cannada, Oxford, MS, for Defendants.

OPINION & ORDER

Robert E. Wier, United States District Judge

A little more than 13 years ago, a gynecologist told a struggling Virginia Corder that choosing Ethicon's pelvic mesh products would be "the best thing that would ever happen" to her. Corder took that advice and signed on for surgical implantation of two Ethicon devices. Per Corder, what followed were years of debilitating complications and removal surgery. Corder blames Ethicon and filed this suit to prove recover for her harms.

I. BACKGROUND

Defendant Ethicon, Inc., a Johnson & Johnson subsidiary,² manufactured, marketed, and sold pelvic mesh products aimed primarily at the treatment of female pelvic organ prolapse and stress urinary incontinence. In 2007, Plaintiff Virginia Corder, suffering from cystocele³ and urinary retention, consulted with her gynecologist, Dr. Kimberly Bush, regarding treatment options. See DE 5 at 6 (Pl.’s Fact Sheet).⁴ Corder, herself a registered nurse, inquired about an "old fashioned" bladder tack procedure—involving use of the patient's own tissue to surgically "tack up" (via sutures) the prolapsed bladder. Corder Dep. at 142–43. However, Dr. Bush advised that Ethicon's Prolift+M and TVT-SECUR implants were the better solution. Indeed, Bush confidently predicted that implanting Ethicon's devices would be "the best thing that would ever happen to" Corder. Id. After reviewing an Ethicon pamphlet (supplied by Dr. Bush), and "trust[ing]" her gynecologist's recommendation, id. , Corder chose to go with Defendants’ products. Dr. Bush surgically implanted the devices on March 30, 2007. DE 52-1 at 3.

Unfortunately, the mesh implants did not, as Corder tells it, prove the boon that Bush forecasted. Per Plaintiff, the implants’ effects were numerous and uniformly negative. Among other complications, Corder claims: pain in multiple areas (abdomen, low back, hip), incontinence (urinary and bowel), loss of sensation, abscesses, bleeding, inability to have (or pain during) intercourse, urinary tract infections, cloudy vision, bloody discharge, and bladder spasms. DE 5 at 7; Corder Dep. at 66–67. Plaintiff claims these symptoms began appearing "directly after" her surgery and that they persisted, at least in part, through her claim date, nearly a decade post-op. DE 5 at 8.

Dr. Bush advised Corder that her post-surgery symptoms "were normal[.]" Id. However, Corder "suspected" that the implants were the cause of her maladies. And, a 2016 examination (by Dr. Donna Nall) revealed "a wad of mesh and erosion" that confirmed Plaintiff's suspicions. Id. at 8, 13. The examining physician referred Corder to Dr. Rudolph Tovar for a June 3, 2016, removal operation. Id. at 8, 12. Dr. Tovar was able to remove only parts of the mesh because, per Plaintiff, portions were inextricably fused with Corder's "tendons and pelvic region." Id. at 7.

Plaintiff, seeking to hold Ethicon liable under various theories, filed suit on November 16, 2016. See DE 1 (Short Form Complaint). Corder joined hundreds of other Ethicon-product plaintiffs in a Southern District of West Virginia hosted MDL. Following initial processing, the MDL Court transferred this matter to this District for final resolution. See DE 40 (Transfer Order).

Ethicon's motion for partial summary judgment now pends. DE 52. Plaintiff brings 18 claims. See DE 1 at 4–5 (asserting Counts I–XVIII of the operative master complaint); DE 42-1 (Am. Master Compl.). Defendants’ motion challenges eleven of Corder's theories, including: strict liability based on failure to warn, manufacturing and/or product defects (Counts II–IV, DE 42-1 ¶¶ 95–114), fraud (Count VI, id. ¶¶ 119–47), fraudulent concealment (Count VII, id. ¶¶ 148–56), constructive fraud (Count VIII, id. ¶¶ 157–64), negligent misrepresentation (Count IX, id. ¶¶ 165–69), express and implied warranty breaches (Count XI & XII, id. ¶¶ 174–96), violation of consumer protection laws (Count XIII, id. ¶¶ 197–215), and unjust enrichment (Count XV, id. ¶¶ 221–25). The motion—fully briefed, see DE 54 (Resp.), DE 55 (Reply)⁵ —stands ripe for review. For the following reasons, and under the applicable standards, the Court finds Defendants’ requests only partly warranted. Plaintiff abandons one claim (Count II), another is unnecessarily redundant (Count IV), and three others (Counts XI–XIII) are fatally flawed. The balance of the claim slate survives Ethicon's Rule 56 challenge on the terms here stated.

II. APPLICABLE STANDARDS

A 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." Fed. R. Civ. P. 56(a). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) ; Lindsay v. Yates , 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not "weigh the evidence and determine the truth of the matter" at the summary judgment stage. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett , 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (requiring the moving party to set forth "the basis for its motion, and identify[ ] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate an absence of a genuine issue of material fact"); Lindsay , 578 F.3d at 414 ("The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute."). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce "specific facts" showing a "genuine issue" for trial. Celotex Corp. , 106 S. Ct. at 2253 ; Bass v. Robinson , 167 F.3d 1041, 1044 (6th Cir. 1999). However, " Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. , 106 S. Ct. at 2552 ; see also id. at 2557 (Brennan, J., dissenting) ("If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56 ’s burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." (emphasis in original)).

A fact is "material" if the underlying substantive law identifies the fact as critical. Anderson , 106 S. Ct. at 2510. Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. A "genuine" fact dispute exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 2511 ; Matsushita Elec. , 106 S. Ct. at 1356 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ") (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp v. FDIC , 187 F. App'x 428, 444–45 (6th Cir. 2006).

III. ANALYSIS

Preliminary Matters

Before turning to the disputed claims, a few initial notes. First, Plaintiff has conceded that Count II should be dismissed; the Court sees no need for substantive analysis of that abandoned claim. Second, the parties agree that substantive Kentucky law applies in this diversity case; the Court, accordingly, undertakes no independent choice-of-law analysis. Gahafer v. Ford Motor Co. , 328 F.3d 859, 861 (6th Cir. 2003). Finally, the Court notes that Defendants’ motion attacks Corder's claims on discrete, largely legal bases. Ethicon, for purposes of this motion, does not challenge Plaintiff's ability to prove factually, e.g. , that Defendants’ products were defective or the cause of her injuries. The Court, for purposes of the present Rule 56 analysis alone, accepts as provable (to a rationale decider) unchallenged aspects of Corder's theories.

Strict Liability – Failure to Warn

Undisputed, for now, is Corder's claim that Defendants failed to warn of potential "chronic long term infection, urinary retention, mesh exposure, dyspnea and vaginal pain" risks stemming from implantation of Ethicon's pelvic mesh products. DE 54-1 ¶ 8. Ethicon, however, argues that Corder lacks proof, as Kentucky formulates the tort, causally linking deficient warning contentions (Count III) to claimed injuries. DE 53 at 4–5.

For products liability claims, Kentucky has adopted the Restatement (Second) of Torts § 402A.⁶ See Dealers Transp. Co. v. Battery Distrib. Co. , 402 S.W.2d 441, 446–47 (Ky. 1965). Section 402A provides liability for injuries proximately caused by a product manufactured in a "defective condition unreasonably...