Killen v. Johnson & Johnson

1

MARY KILLEN and MICHAEL KILLEN PLAINTIFFS v. JOHNSON & JOHNSON and ETHICON, INC. DEFENDANTS

Civil Action No. 3:20-CV-829-KHJ-MTP

United States District Court, S.D. Mississippi, Northern Division

February 3, 2022

ORDER

KRISTI H. JOHNSON, UNITED STATES DISTRICT JUDGE

This action is before the Court on Defendants Johnson &amp Johnson and Ethicon, Inc.'s (“Defendants”) Motion for Partial Dismissal of Plaintiffs' Second Amended Complaint [16]. As explained below, the Court grants in part and denies in part Defendants' motion.

I. Facts and Procedural History

Plaintiffs Mary and Michael Killen allege that Mrs. Killen sustained injuries from the implantation of the TVT-Obturator (“TVT-O”) pelvic mesh device manufactured by Defendant Ethicon, Inc. for the surgical treatment of stress urinary incontinence. Second Am. Compl. [15]. The Killens contend that, following implantation of the TVT-O mesh, the mesh eroded and caused Mrs. Killen chronic injuries by degrading, shrinking, contracting, migrating, and deforming. Id. ¶ 7. They also allege the TVT-O device's mesh is incompatible with human tissue and promotes immune responses in large swaths of the population. Id. ¶ 22. Following an immune response, the TVT-O's degradation causes chronic inflammation, nerve entrapment, infectious disease response, and chronic pain. Id. ¶ 23-24. The Killens contend that, at all times relevant to Mrs. Killen receiving the device, Defendants knew of the TVT-O's defective condition. Id. They assert Defendants marketed the product with knowledge of the defects and mislead the medical community as to the risks associated with the material. Id. ¶¶ 28-30.

The Killens sue for (I) design defect, (II) manufacturing defect, (III) failure to warn, (IV) breach of express warranty, (V) failure to conform to representations, and (VI) unjust enrichment, seeking compensatory and punitive damages, and equitable relief. [15] ¶¶ 90-185. Mr. Killen also brings a loss of consortium claim. Id. ¶¶ 186-92. Defendants move to dismiss the Killens' claims for manufacturing defect (Count II), breach of express warranty (Count IV), failure to conform to representations (Count V), and unjust enrichment (Count VI) claims under Rule 12(b)(6) for failure to state a claim. [16].

II. Standard

In reviewing a Rule 12(b)(6) motion, the Court, viewing all evidence in the light most favorable to the plaintiff, must consider whether the plaintiff states a valid claim for relief. Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). To state a valid claim for relief, the plaintiff must allege enough facts that, when accepted as true, show “facial plausibility” and allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The plaintiff need not provide detailed factual allegations to survive a Rule 12(b)(6) motion but must allege enough facts “to raise a right of relief above the speculative level.” Twombly, 550 U.S. at 555. The Court need not accept as true a plaintiff's legal conclusions or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

III. Analysis

Defendants ask the Court to dismiss these claims from Killens' Second Amended Complaint: Count II, manufacturing defect; Count IV, breach of express warranty; Count V, failure to conform to representations; and Count VI unjust enrichment. The Court addresses each claim separately.

A. Count II: Manufacturing Defect

Defendants argue that the manufacturing defect claim fails because the Killens do not allege that the type of mesh used in Killen's TVT-O implant differed from the mesh used in other TVT-O devices. [17] at 3. Defendants also argue that the Killens do not plead enough facts showing that the TVT-O implant deviated from Ethicon's design specifications. Id. The Killens contend that the TVT-O product implanted in Mrs. Killen was manufactured in a defective manner because the manufacturer failed to: (1) use biologically compatible mesh material; (2) provide adequate specifications in design; (3) cut the mesh without sharp edges, and; (4) to include a protective sheath. [15] ¶¶ 104-09.

To succeed on a claim for manufacturing defect under the Mississippi Products Liability Act, a party must prove these elements existed “at the time the product left the control of the manufacturer”:

(i) [t]he product was defective because it deviated in a material way from the manufacturer's or designer's specifications or from otherwise identical units manufactured to the same manufacturing specifications, . . .

(ii) the defective condition rendered the product unreasonably dangerous to the user or consumer; and

(iii) the defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.

Miss. Code Ann. § 11-1-63(a)(1). Manufacturing defect claims involve allegations that the specific product the consumer bought was manufactured in a way that deviated from the design specification. Hickory Springs Mfg. Co. v. Star Pipe Prod., 991 F.Supp.2d 778, 780 (N.D. Miss. 2014). A party must plead how the subject product deviated from the manufacturer's specifications or other units, or the claim must be dismissed. Adams v. Energizer Holdings, Inc., No. 3-12-CV-797, 2013 WL 1791373, at *3 (S.D.Miss. Apr. 19, 2013).

The Killens fail to sufficiently plead a manufacturing defect. The Killens may state a claim for a manufacturing defect by claiming Mrs. Killen's TVT-O was materially different from other TVT-O's or by claiming the device deviated from design specifications. See Miss. Code Ann. § 11-1-63(a)(1)(i). They assert the second theory. See [15], ¶ 100. To support this theory, the Killens allege the TVT-O implant did not conform to Ethicon's intended design by (1) using non-medical grade material, id. ¶ 104, (2) being cut by a laser or machine that caused the polypropylene mesh to have sharp edges, id. ¶ 107, and (3) not having a sheath, which created an abrasive insertion and lead to mesh erosion, id. ¶ 108. None of these allegations support a theory of manufacturing defect because the Killens admit Defendants designed the TVT-O to use polypropylene mesh, id. ¶ 20, and do not allege that Defendants designed the TVT-O to have a sheath. And the Killens do not allege design specifications requiring particular methods in cutting the TVT-O mesh or prohibiting the use of a laser or machine in the process. For these reasons, the Court dismisses the Killens' manufacturing defect claim.

B. Count IV: Breach of Express Warranty

The Killens argue Defendants made and breached express warranties to them and their physician about the quality and safety of the device in advertisements, marketing materials, and instructions. [15] at 133-45. Defendants assert that this claim is time-barred and, even if it is timely, the Killens identify no express warranty or representations Defendants made to them. [17] at 5-11. The Killens counter that the discovery rule and Defendants' acts of fraudulent concealment tolled the statute of limitations, rendering their claim timely. Alternatively, the Killens assert that Defendants waived or should be equitably estopped from asserting their limitations argument. [15] at 79-89.

a. Statute of Limitations

When a defendant asserts a statute of limitations defense, ^[1] the Court may grant a motion to dismiss under Rule 12(b)(6) if “[1] it is evident from the plaintiff's pleadings that the action is time-barred, and [2] the pleadings fail to raise some basis for tolling.” Taylor v. Bailey Tool & Mfg. Co., 744 F.3d 944, 946 (5th Cir. 2014). In the presence of these two factors, the Court should grant a defendant's motion to dismiss without considering defendant's alternative grounds for dismissal. Id. The Court therefore will first address whether Mississippi's statute of limitations time-bars the Killens' breach of express warranty claim, and if so, whether the pleadings raise grounds for tolling.

i. Applicable Limitations Period

In Mississippi, the statute of limitations for breach of warranty is six years from accrual. Miss. Code Ann. § 75-2-725(1). “A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach.” Id. § (2). A breach of warranty occurs when a party tenders delivery unless the party explicitly extends the warranty to future performance. Id. But the warranty's promise or guarantee to extend into the future must be “clearly stated.” Rutland v. Swift Chem. Co., 351 So.2d 324, 325 (Miss. 1977). Even complete inability to discover breach at time of delivery will not inhibit the statute's running, nor can it imply a future warranty. Id. (rejecting argument that “very nature of fertilizer . . . requires that its warranty be ‘prospective in operation'”).

Applying these principles, the statute of limitations started running on the date Mrs. Killen's physician implanted the TVT-O absent an express future warranty. While the Killens allege the Defendants made express future warranties, they only point to statements in advertisements and brochures that the TVT-O is a permanent cure [15] ¶133; it is safe and effective id. ¶140; it does not shrink or deform id.; it does not degrade id.; it only may cause temporary injury id.; it is effective id. ¶144; complications are rare id.; and it was safer and more effective than other procedures id. ¶145. Even if these statements are in fact express warranties, they do not explicitly suggest that they are for future performance. There is no specific reference to a future period. Because the Killens...