Fields v. Ethicon, Inc.

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BETTY C. FIELDS, Plaintiff, v. ETHICON, INC., and JOHNSON & JOHNSON, Defendants.

Civil Action No. 4:21-cv-00020

United States District Court, S.D. Georgia, Savannah Division

March 28, 2023

ORDER

R STAN BAKER UNITED STATES DISTRICT JUDGE

Presently before the Court is Defendants Ethicon, Inc., and Johnson & Johnson's (collectively “Defendants”) Motion for Partial Summary Judgment. (Doc. 99). This case originated in the United States District Court for the Southern District of West Virginia as part of multi-district ligation (“MDL”) No. 2327. (See doc. 1 (“Short Form Complaint”).) Plaintiff Betty Fields is one of thousands who alleged injury after being implanted with pelvic mesh products designed, manufactured, and sold by Defendants. (See generally docs. 1, 238 (“First Amended Master Long Form Complaint”).) The case was transferred to this Court on January 26, 2021. (See docs. 86, 87.) After the parties completed discovery, Defendants filed the at-issue Motion for Partial Summary Judgment on Plaintiff's failure to warn claims (Counts I and III) and on Plaintiff's claim for “strict liability-defective product” (Count IV). (Doc. 99.) Defendants argue, inter alia, that Plaintiff cannot carry her burden on these claims because she has failed to demonstrate that Defendants' failure to warn caused her injuries, and because “defective product” is not a cognizable products liability claim under Georgia law. (Doc. 99.) The Motion has been fully briefed. (See id.; docs. 102, 106.) For the reasons stated below, the Court GRANTS in part and DENIES in part Defendants' Motion. (Doc. 99.)

BACKGROUND

I. Factual Background

On December 14, 2006, Plaintiff Betty Fields went to her ob/gyn, Dr. Alan Smith. (Doc. 99-1, p. 1; doc. 102-1, p. 1; see doc. 99-3, p. 11.) At the time of Plaintiff's visit, Dr. Smith had been practicing as an ob/gyn and performing pelvic surgeries for ten years. (Doc. 99-1, p. 2; doc. 102-1, p. 3.) During this visit, Plaintiff reported problems with urine leakage and bowel elimination. (Doc. 99-1, p. 1; doc. 102-1, p. 1; see doc. 99-3, p. 11.) Dr. Smith thereafter evaluated Plaintiff and found, upon a vaginal exam, that she had “a mild rectocele,” and, upon a rectal exam, a “more significant” rectocele. (Doc. 99-3, p. 11.) As a result, Dr. Smith believed her to have “symptomatic pelvic prolapse.” (Id. at p. 12.) Dr. Smith decided to perform a rectocele repair using mesh to treat Plaintiff's pelvic organ prolapse. (Doc. 99-1, p. 2; doc. 102-1, p. 3.) Dr. Smith performed this implantation surgery using Ethicon's Gynemesh PS (“Gynemesh”), which is a type of mesh implant, on February 6, 2007. (Doc. 99-1, p. 2; doc. 102-1, p. 2; see doc. 99-3, p. 14.)

At his deposition, Dr. Smith testified that he was aware of the common risks that any pelvic floor surgery poses, regardless of whether the procedure uses mesh or not. (Doc. 99-1, p. 2; doc. 102-1, p. 3; see doc. 99-3, pp. 8-9.)^[1] However, he additionally testified that it was his understanding at the time of his recommendation that mesh repairs generally have a lower failure rate than traditional repairs-which he understood to have a failure rate of around 25 to 30 percent. (Doc. 99-1, p. 3; see doc. 99-3, pp. 12-13.) He was additionally aware of certain risks that mesh implants, like Gynemesh, pose, including acute or chronic pain, infection, bleeding, wound complications, inflammation, and a need for surgeries to treat a potential adverse event. (Doc. 991, p. 4; see also doc. 99-3, p. 22.) While Dr. Smith testified that other types of mesh were available for him to use, (doc. 99-3, p. 25), at the time of the surgery, he believed implanting Gynemesh was the best option for treating Plaintiff's condition. (Id. at p. 5.) However, Dr. Smith also identified additional information that he was unaware of and that he would have liked to have known before performing the implantation, including risks arising from the porousness of the mesh, and mesh contraction, erosion, and potential degradation in the body. (Doc. 102-1, pp. 3-5; see also doc. 99-3, pp. 25, 29, 30, 35, 36.) Neither party disputes that Dr. Smith's treatment of Plaintiff met the requisite standard of care.

The surgery ultimately led to complications. Specifically, Plaintiff suffered from erosion, chronic infections, chronic pain, chronic bleeding, and pudendal neuralgia. (Doc. 99-1, p. 5; 1021, p. 6.) Plaintiff has additionally undergone two mesh excision surgeries to remove portions of the Gynemesh. (Doc. 99-1, p. 5; doc. 102-1, p. 6.)

II. Procedural History

Plaintiff initially filed this lawsuit for the injuries she suffered as a result of the Gynemesh implantation on October 19, 2012, by submitting her Short Form Complaint in the MDL in the Southern District of West Virginia. (See doc. 1.) She amended her Short Form Complaint on August 6, 2014. (Doc. 18.) In the Amended Short Form Complaint, Plaintiff includes all the claims brought in the Master Complaint: 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); 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); Unjust Enrichment (Count XV); and Punitive Damages (Count XVII). (See doc. 18, pp. 4-5.)

During the course of discovery in the MDL, Dr. Smith was identified as a non-retained expert witness by both parties. (Docs. 107-2, 107-3.) He was subsequently deposed on March 27, 2019. (See generally doc. 99-3.) On May 9, 2019, while this case was still a part of the MDL, Defendants filed a Motion for Partial Summary Judgment on Plaintiff's failure to warn and strict liability-defective product claims. (Doc. 67.) The case was officially transferred to this Court on January 26, 2021, (docs. 86, 87), and Defendants' Motion for Partial Summary Judgment was part of the designated record, (doc. 67).

Once the case was transferred, the Court, on March 22, 2021, directed the Parties to provide a status update and concurrently dismissed Defendants' then-pending Motion for Summary Judgment based on the fact that it had been pending since May 2019 and was originally filed in a different court. (Doc. 97.) The Court thereafter ordered Defendants to refile the Motion. (Id.) The Court specifically noted that it would “not accept any motion or response that incorporates by reference any factual allegation or argument contained in an earlier filing[,]” and that “[e]ach motion and response should be a stand-alone filing that independently contains all the factual allegations and arguments that the filing party wishes the Court to consider.” (Id. at p. 2.)

Pursuant to the Court's Order, Defendants filed their renewed Motion for Partial Summary Judgment on May 6, 2021, again moving for summary judgment on Plaintiff's failure to warn and strict liability-defective product claims. (Doc. 99.) In their Motion, Defendants first assert that Plaintiff has conceded all claims except for: Negligence (Count I), Failure to Warn (Count III), “Defective Product” (Count IV), and Design Defect (Count V). (Id. at pp. 1-2.) As to these remaining claims, Defendants only move for summary judgment on Counts I and III for failure to warn and Count IV for “defective product.” (See generally id.) Defendants rely heavily on Dr. Smith's March 27, 2019, deposition in support of their Motion on the failure to warn claim, arguing that Plaintiff cannot show that Dr. Smith was unaware of the risks Gynemesh posed and that Plaintiff also cannot show that Dr. Smith would not have taken the same course of action if he had had the information Plaintiff claims Defendants should have provided him. (See id. at pp. 7-13.) Plaintiff filed a Response to Defendants' Motion, to which she attached a declaration from Dr. Smith executed on May 20, 2021. (Docs. 102, 102-3.)^[2] Defendants thereafter filed a Reply. (Doc. 106.)

STANDARD OF REVIEW

Summary judgment “shall” be granted 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 fact is “material” if it “might affect the outcome of the suit under the governing law.” FindWhat Inv'r Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The moving party bears the burden of establishing that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. See Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003). Specifically, the moving party must identify the portions of the record which establish that there are no “genuine dispute[s] as to any material fact and the movant is entitled to judgment as a matter of law.” Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). When the nonmoving party would have the burden of proof at trial, the moving party may discharge his burden by showing that the record lacks evidence to support the nonmoving party's case or that the nonmoving party would be unable to prove his case at trial. See id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does...