Kelly v. Ethicon, Inc.

SUSAN KELLY; and TIMOTHY KELLY, Plaintiffs, v. ETHICON, INC.; and JOHNSON & JOHNSON, Defendants.

No. 20-CV-2036-CJW-MAR

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

October 16, 2020

MEMORANDUM OPINION AND ORDER

TABLE OF CONTENTS

I. INTRODUCTION ......................................................................... 3

II. RELEVANT BACKGROUND ........................................................... 3

III. PLAINTIFFS' MOTION FOR LEAVE TO TAKE THE DEPOSITION OF RANDALL BREMNER, M.D. ........................................................... 6

A. Applicable Law ...................................................................... 6

B. Analysis ............................................................................... 7

IV. PLAINTIFFS' MOTION TO RECONSIDER THIS COURT'S ORDER ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ........ 10

A. Applicable Law ..................................................................... 10

B. Analysis .............................................................................. 12

1. Strict Liability for Design Defect ....................................... 12

2. Negligent Failure to Warn ............................................... 14

a. Application of the Learned Intermediary Doctrine .......... 14

b. Exception to the Learned Intermediary Doctrine ............. 16

c. Post-Sale Duty to Warn .......................................... 18

3. Negligent Misrepresentation ............................................. 21

4. Fraud-Based Claims ....................................................... 22

5. Loss of Consortium ........................................................ 22

V. DEFENDANTS' MOTION FOR LEAVE TO FILE SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT ON THE STATUTE OF LIMITATIONS ............................................................................. 23

A. Applicable Law ..................................................................... 23

B. Analysis .............................................................................. 24

VI. CONCLUSION ............................................................................. 29

I. INTRODUCTION

This matter is before the Court on plaintiffs Susan Kelly ("plaintiff") and Timothy Kelly's ("Timothy") (collectively "plaintiffs") Motion for Leave to Take the Deposition of Randall Bremner, M.D. ("Dr. Bremner") (Doc. 83) and plaintiffs' Motion to Reconsider and Amend this Court's Memorandum Opinion and Order on Defendants' Motion for Summary Judgment (Doc. 84). As to both motions, defendants Johnson & Johnson and Ethicon, Inc. ("Ethicon") timely resisted and plaintiffs timely replied. (Docs. 87, 88, 89, & 90). For the following reasons, the Court denies both of plaintiffs' motions.

This matter is also before the Court on defendants' Motion for Leave to File Supplemental Motion for Summary Judgment on the Statute of Limitations. (Doc. 82). Plaintiffs timely resisted and defendants timely replied. (Docs. 85 & 86). For the following reasons, the Court grants defendants' motion.

The Court will address each motion below in the following order: (1) plaintiffs' motion for leave to depose Dr. Bremner (Doc. 83); (2) plaintiffs' motion for reconsideration (Doc. 84); and (3) defendants' motion for leave to file a supplemental motion for summary judgment (Doc. 82).

II. RELEVANT BACKGROUND

Plaintiffs have resided in Iowa since at least 1990. (Doc. 38-1, at 3). Johnson & Johnson and its subsidiary Ethicon are both New Jersey corporations. (Doc. 1-1, at 1).

On March 7, 2004, plaintiff received a tension-free vaginal tape ("TVT") mesh implant manufactured by Ethicon. See (Doc. 39, at 2). Plaintiff's implantation procedure took place in Waterloo, Iowa. (Id.). Plaintiff received the implant to stabilize her prolapsed bladder. (Doc. 40-1, at 44). Dr. Bremner performed the procedure. (Doc. 39, at 2). Plaintiff testified that she does not remember receiving any brochures, handouts, or other materials about the TVT implant before her surgery, that she did notknow who manufactured the implant, and that she did not rely on any statements by defendants in selecting it. (Id., at 2-3; Doc. 45, at 3-4). Plaintiff, however, states that Dr. Bremner failed to inform her of the potential risks posed by the TVT implant and that she relied on his advice. (Doc. 45, at 3-6). Plaintiff states she was only informed of the risks posed by the implant procedure and not the TVT implant itself. (Id., at 5). Plaintiff alleges that, as a result of her TVT implant corroding, oxidizing, or eroding, she has suffered from, among other things, "depression, pelvic pain, dyspareunia, loss of services of her spouse, continued and worsening incontinence, [urinary tract infections], urinary retention, abdominal pain, urgency, frequency, and dysuria." (Id., at 4) (citing plaintiff's deposition testimony).

On February 28, 2014, plaintiffs filed suit in the multidistrict litigation ("MDL") related to defendants' TVT implant in the United States District Court for the Southern District of West Virginia. (Doc. 1). Plaintiffs asserted 17 claims consisting of: negligence (Count I); strict liability for a manufacturing defect (Count II); strict liability for failure to warn (Count III); strict liability for a defective product (Count IV); strict liability for a design defect (Count V); common law 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); gross negligence (Count XIV); unjust enrichment (Count XV); loss of consortium (Count XVI); and punitive damages (Count XVII). (Id.).¹ On September 17, 2014, plaintiff had part of her TVT implant removed in Iowa City, Iowa by Dr. Elizabeth Takacs. (Docs. 39, at 2; 45, at 3).

On August 9, 2019, defendants moved for partial summary judgment on plaintiff's claims for negligence (to the extent it asserted claims for negligent failure to warn or negligent manufacturing defect) (Count I), strict liability for manufacturing defect (Count II), strict liability for failure to warn (Count III), strict liability for defective product (Count IV), strict liability for design defect (Count V), common law fraud (Count VI), fraudulent concealment (Count VII), constructive fraud (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), gross negligence (Count XIV), and unjust enrichment (Count XV). (Doc. 38, at 1). On August 28, 2019, plaintiffs timely filed a resistance. (Doc. 45).

On June 2, 2020, this case was transferred from the Southern District of West Virginia to this Court. (Doc. 62). On August 7, 2020, the Court granted in part and denied in part defendants' motion for partial summary judgment. (Doc. 81). The Court granted summary judgment on plaintiff's claims for negligence (as it relates to negligent failure to warn and negligent manufacturing defect) (Count I); strict liability for manufacturing defect (Count II); strict liability for failure to warn (Count III); strict liability for defective product (Count IV); strict liability for design defect (Count V); common law fraud (Count VI); fraudulent concealment (Count VII); constructive fraud (VIII); negligent misrepresentation (Count IX); breach of express warranty (Count XI); breach of implied warranty (Count XII); violation of consumer protection laws (Count XIII); and gross negligence (Count XIV). (Id., at 22). It denied summary judgment on plaintiff's claims for negligence (as it relates to negligent design) (Count I); negligent infliction of emotional distress (Count X); and unjust enrichment (Count XV). (Id., at 23). Defendants did not request, and the Court did not grant, summary judgment on plaintiffs' claims for loss of consortium (Count XVI) and punitive damages (Count XVII).

III. PLAINTIFFS' MOTION FOR LEAVE TO TAKE THE DEPOSITION OF

RANDALL BREMNER, M.D.

A. Applicable Law

Most courts in the Eighth Circuit have analyzed a motion for leave to take a deposition after the close of discovery under Federal Rule of Civil Procedure 16(b). See, e.g., Bell v. Mine Safety Appliances, No. 1:13-cv-01075, 2015 U.S. Dist. LEXIS 178459, at *2-3 (W.D. Ark. Nov. 17, 2015); Optimal Interiors, LLC v. Hon Co., No. 3:09-cv-00177-JEG-RAW, 2011 WL 13308179, at *1 (S.D. Iowa Mar. 7, 2011). Rule 16(b) states that a court must issue a scheduling order which sets deadlines for, among other things, discovery. FED. R. CIV. P. 16(b)(3). Rule 16(b)(4) states that "[a] schedule may be modified only for good cause and with the judge's consent." Thus, courts generally employ a flexible good cause standard when evaluating a motion for leave to take a late deposition. See, e.g., Bell, 2015 U.S. Dist. LEXIS 178459, at *2-3 (finding the defendants did not show good cause); Hon Co., 2011 WL 13308179, at *1 ("When a dispute arises and a party requests leave to take trial depositions after the discovery deadline, a certain amount of flexibility in application of [Rule] 16(b)(4) good cause standard is often in order to assure basic fairness and presentation of a full record to the fact finder.").

"The primary measure of [the] 'good cause' standard is the moving party's diligence in attempting to meet the [scheduling] order's requirements." Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). Nevertheless, even if the movant shows good cause, the court "retains discretion as to whether to grant the motion" because the scheduling order is "a vehicle designed to streamline the flow of litigation through our crowded dockets." Id. (citing In re Milk Prods. Antitrust Litig., 195 F.3d 430,...