Mills v. Ethicon, Inc.

678 F.Supp.3d 589

Latiese MILLS, Plaintiff, v. ETHICON, INC.; Johnson & Johnson; C.R. Bard Inc.; Davol, Inc.;Atrium Medical Corporation; Maquet Cardiovascular, LLC; Getinge AB;Covidien, Inc.; Covidien LLC; Covidien PLC; Covidien AG; Sofradim Productions;and John Doe Corporations 1-100, Defendants.

Civ. No. 17-12624 (KM) (JBC)

United States District Court, D. New Jersey

Signed June 22, 2023

Lisa Lanell Causey-Streete, Salim-Beasley LLC, Natchitoches, LA, Nicholas Rocco Farnolo, Napoli Shkolnik, Melville, NY, for Plaintiff.

Caroline Power, Michelle Hart Yeary, Dechert, LLP, Eben Scott Flaster, Brian Michael Lands, Shook Hardy & Bacon, Philadelphia, PA, for Defendants Atrium Medical Corporation, Maquet Cardiovascular, LLC, Getinge AB.

OPINION

KEVIN MCNULTY, United States District Judge:

Plaintiff Latiese Mills commenced this personal injury action against defendants Atrium Medical Corporation ("Atrium") and Maquet Cardiovascular, LLC ("Maquet"). Now Before the Court is the motion of Atrium and Maquet for summary judgment. For the reasons expressed below, Atrium and Maquet's motion for summary judgment is GRANTED in part and DENIED in part.

I. BACKGROUND

A. Facts¹

In April 2012, Mills underwent surgery wherein her bowel was improperly attached to her vagina. (Def. St. ¶ 2; Pl. Resp. ¶ 2.) Thereafter, Mills underwent corrective surgery involving a midline incision. (Id.) A year after Mills's operation, "her incision was tender, the bottom of her incision bled, and it sometimes had a foul odor." (Def. St. ¶ 3; Pl. Resp. ¶ 3.) "A hernia later developed along Plaintiff's incision and, [o]n March [27,] 2013, Plaintiff underwent hernia repair surgery by Dr. Alan Schuricht with ProLite [mesh] placed at the hernia site to complete the repair." (Def. St. ¶ 4; Pl. Resp. ¶ 4.) ProLite is a polypropylene surgical mesh used in hernia repair. (Pl. St. ¶ 27; Def. Resp. ¶ 27.) "The subject ProLite mesh was manufactured by Atrium at Hudson on April 2, 2012, implanted in Plaintiff on March 27, 2013 and explanted on March 31, 2017." (Pl. St. ¶ 39; Def. Resp. ¶ 39.)

Mills's surgical site became infected and, on July 3, 2013, Dr. Schuricht performed surgery to debride the infection. (Def. St. ¶ 10; Pl. Resp. ¶ 10.) "The debridement surgery removed infected abdominal wall tissue and a small portion of ProLite, measuring 1 × 1.5 centimeters of the original 3 × 6 inches." (Def. St. ¶ 12; Pl. Resp. ¶ 12.) Plaintiff alleges that she sustained "seroma, infection, additional surgery, scar formation, pain, and hernia recurrence" because of the ProLite mesh. (See Def. St. ¶ 6; Pl. Resp. ¶ 6.)

On February 4, 2014, Mills filed a malpractice action in Pennsylvania state court claiming that her 2012 surgeries caused her 2013 hernia surgery and subsequent issues, ongoing abdominal pain and infection, and other damages. (Def. St. ¶ 15; Pl. Resp. ¶ 15; see Power Decl. Ex. 5.) In her malpractice action, Mills alleged: "The hernia developed as a consequence of damage to the muscles and fascia in the abdomen as a consequence of the [2012] open laparotomy procedure and erosion of these tissues as a consequence of infection and irritation by contaminants as a result of the colovaginal fistula." (Def. St. ¶ 16; Pl. Resp. ¶ 16.) On November 23, 2015, in relation to the malpractice action, Mills executed a settlement agreement releasing:

"all [ ] person . . . whether or not named herein . . . from any and all causes of action, claims and demands of whatsoever kind on account of all known and unknown injuries, losses and damages allegedly sustained by Latiese M. Mills as a result of any conduct and/or action of [named healthcare providers], at any time, including but not limited to any claim arising out of or in any way connected with [Ms. Mills's 2012 abdominal surgeries] . . . . It is expressly understood and agreed that this release and settlement is intended to cover and does cover not only all now known injuries, losses and damages, but any further injuries, losses and damages which arise from, or are related to, any claim which Latiese M. Mills ever had, now has, or may have [regarding her 2012 abdominal surgeries].

(Def. St. ¶ 17; Pl. Resp. ¶ 17.)

B. Procedural History

On November 30, 2017, Mills filed a complaint in New Jersey state court alleging the following claims: (1) negligence; (2) strict products liability - defective design; (3) strict products liability - failure to warn; (4) breach of an express warranty; (5) breach of an implied warranty for a particular purpose; and (6) breach of an implied warranty of merchantability. On December 5, 2017, defendant Covidien Inc. removed the action to this Court, invoking diversity jurisdiction, 28 U.S.C. § 1332(a). (DE 1). On December 15, 2017, Mills voluntarily dismissed the following defendants: Ethicon, Inc.; Johnson & Johnson; C.R. Bard Inc.; Davol, Inc.; Covidien, Inc.; Covidien LLC; Covidien PLC; Covidien AG; Sofradim Productions; and John Doe Corporations 1-100. (DE 2).

On January 15, 2019, the remaining defendants, Atrium, Maquet, and Getinge AB, filed motions to dismiss. (DE 25, 26.) Atrium and Maquet sought dismissal of the complaint pursuant to Federal Rule 12(b)(6) on the grounds that the complaint failed to meet pleading standards for statement of a claim. They also contended that applicable Pennsylvania substantive law does not recognize strict liability or warranty claims in medical device products liability cases. Getinge AB, the Swedish corporate parent of Atrium and Maquet, contended that service was defective and that it was not subject to personal jurisdiction in New Jersey.

On August 27, 2019, I granted the motion to dismiss. (DE 38.) I dismissed, with prejudice, Mills's claims of strict liability for defective design (second count); strict liability for failure to warn (third count); breach of the implied warranty of fitness for a particular purpose (fifth count); and breach of the warranty of merchantability (sixth count). I dismissed, without prejudice, Mills's claims of negligence and breach of express warranty (first and fourth counts). I also concluded that Mills's service on Getinge AB was deficient.

On November 8, 2019, Mills filed an amended complaint naming only Atrium and Maquet (as well as John Doe Corporations 1-100) as defendants. (DE 43.) The amended complaint asserts two claims: negligence (first count) and breach of express warranty (second count).

On August 12, 2022, Atrium and Maquet filed a motion for summary judgment and a motion to exclude the opinions and testimony of Mills's expert Dr. Paul J. Cohen. (DE 102, 103.) On March 1, 2023, the motion for summary judgment was stayed pending decision on the motion in limine to exclude Dr. Cohen's evidence. (DE 112.) On March 28, 2023, Judge Clark issued an opinion and order denying defendants' motion to exclude. (DE 113.) Accordingly, Judge Clark reinstated the pending motion for summary judgment (DE 124), which is fully briefed and ripe for decision. (See DE 102, 104, 106, 107, 109, 129.)

II. LEGAL STANDARD

Summary judgment is appropriate where "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" and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Disputes over irrelevant or unnecessary facts will not preclude the Court from granting a motion for summary judgment. See id.

A party moving for summary judgment has the initial burden of showing the basis for its motion and must demonstrate that there is an absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "A party asserting that a fact [is not] genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents . . . , affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). After the moving party adequately supports its motion, the burden shifts to the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (internal quotation marks omitted).

"[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by 'showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. Once the moving party has met that threshold burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

Unsupported allegations, subjective beliefs, or argument alone cannot forestall summary judgment. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1988) (nonmoving party may not successfully oppose summary judgment motion by simply replacing "conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."); see also Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a...