Opinion
CASE NO. 20-61205-CIV-SINGHAL/Valle
2022-03-16
Yolanda Rey SOTOLONGO, Plaintiff, v. ETHICON, INC., Defendant.
Jeffrey Louis Haberman, Sarah Jeanine Schultz, Schlesinger Law Offices, Fort Lauderdale, FL, for Plaintiff. Andrew Russell Kruppa, Amanda Elizabeth Preston, Squire Patton Boggs (US) LLP, Miami, FL, Aneca E. Lasley, Pro Hac Vice, Squire Patton Boggs (US) LLP, Columbus, OH, for Defendant.
Jeffrey Louis Haberman, Sarah Jeanine Schultz, Schlesinger Law Offices, Fort Lauderdale, FL, for Plaintiff.
Andrew Russell Kruppa, Amanda Elizabeth Preston, Squire Patton Boggs (US) LLP, Miami, FL, Aneca E. Lasley, Pro Hac Vice, Squire Patton Boggs (US) LLP, Columbus, OH, for Defendant.
OMNIBUS ORDER
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on three motions for summary judgment filed by Defendant Ethicon, Inc. They are entitled Motion of Defendant for Summary Judgment Based upon Bankruptcy Judicial Estoppel (DE [21]) and Memorandum of Law in Support of Defendant's Motion for Summary Judgment Based upon Bankruptcy Judicial Estoppel (DE [22]); Defendant Ethicon, Inc.’s Motion for Summary Judgment (DE [28]) and Memorandum of Law in Support of Defendant's Motion for Summary Judgment (DE [29]); and Ethicon, Inc.’s Motion for Summary Judgment and Incorporated Memorandum of Law (DE [87]). Each motion is fully briefed. Accordingly, the matters are ripe for review.
I. PROCEDURAL HISTORY
This products liability case was direct filed into the Multidistrict Litigation MDL No. 2327 proceeding in the United States District Court for the Southern District of West Virginia (the "MDL Proceeding"), In Re Ethicon, Inc. Pelvic Repair System Products Liability Litigation. Plaintiff Yolanda Rey Sotolongo ("Plaintiff") filed a Short Form Complaint ("Complaint") (DE [1]) on February 1, 2018, against Defendant Ethicon, Inc. ("Defendant" or "Ethicon") only. On June 18, 2020, this case was remanded to this Court. See (DE [56]).
Plaintiff's case is identified as "294, 2:18-cv-00242, Sotolongo v. Ethicon, Inc." as part of the Wave 11 cases in Pretrial Order # 328. See (DE [32]).
Plaintiff claims she suffered injuries from Gynemesh PS ("Gynemesh"), a pelvic mesh product for the treatment of medical conditions in the female pelvis, primarily and more specifically pelvic organ prolapse and stress urinary incontinence. Gynemesh is a product manufactured and sold by Ethicon for use in stress urinary incontinence surgery and pelvic organ prolapse. Plaintiff alleges Defendant was negligent in the design, manufacture, marketing, and sale of Gynemesh and Ethicon failed to provide doctors—and therefore patients like Plaintiff—with adequate warnings about the product's risks. As a result of Defendants’ conduct, Plaintiff alleges she was implanted with a defective device that caused injuries including pain, dyspareunia, voiding dysfunction, urinary incontinence, and urgency. Defendant denies Plaintiff's allegations and assert that Gynemesh was properly designed for surgeons, like Dr. Harvey Samowitz ("Dr. Samowitz"), who were trained in female pelvic floor repair surgeries.
Plaintiff's surgeon at Memorial Hospital West, Pembroke Pines, Florida.
In her Complaint (DE [1]), Plaintiff asserts causes of action for 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), 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), punitive damages (Count XVII), and discovery rule and tolling (Count XVIII). Plaintiff confirms she does not intend to pursue her claims in Counts II, IV, VI, VII, VIII, IX, XI, XII, XIII and XV. See (Pl. Resp. (DE [112]) at 3). Accordingly, the remaining counts at issue are Plaintiff's claims for negligence (Count I), strict liability—failure to warn (Count III), strict liability—design defect (Count V), negligent infliction of emotional distress (Count X), gross negligence (Count XIV), punitive damages (Count XVII), and discovery rule and tolling (Count XVIII).
In its reply to its Motion for Summary Judgment (DE [117]), Defendant claims Plaintiff did not respond to Ethicon's motion regarding the claim for negligent infliction of emotional distress (Count X). Plaintiff argues Defendant did not move for summary judgment on this claim in MSJ #2. Defendant did, however, move for summary judgment on this in MSJ #3.
There are three pending motions for summary judgment before this Court. In the first motion for summary judgment ("MSJ #1") (DE [21] & [22]), filed on September 19, 2018, Ethicon requested dismissal of Plaintiff's entire action on the grounds of judicial estoppel. Specifically, Ethicon argued that Plaintiff had a revision surgery, and was aware of her (alleged) claim against Ethicon, during the pendency of her Chapter 13 bankruptcy action. Plaintiff filed her opposition to MSJ #1 (DE [24]) on October 3, 2018, arguing the motion should be denied because Plaintiff did not intentionally conceal any information from the Bankruptcy Court—as is required by the Eleventh Circuit. The MDL Court did not issue a ruling before the time of transfer.
In the second motion for summary judgment ("MSJ #2") (DE [28] & [29]), filed on October 17, 2018, Ethicon requested summary judgment on all of Plaintiff's claims on the basis that they are time-barred under Florida's limitations periods, and that Plaintiff's cause of action accrued from the moment that she had knowledge of an injury distinct in some way from her natural condition. Plaintiff responded (DE [30]) on October 25, 2018, contesting Ethicon's statute of limitations argument and Ethicon's separate strict liability – failure to warn (Count III) argument only. Plaintiff expressly abandoned the claims asserted in Counts II, IV, VII, XI, XII, XIII, and XV. Ethicon filed a Reply in Support of Defendant's Motion for Summary Judgment (DE [31]) on October 31, 2018. The MDL Court did not issue a ruling before the time of transfer.
In the third motion for summary judgment ("MSJ #3") (DE [87]), filed on July 16, 2021, Ethicon reiterates arguments raised in MSJ #2 particularly arguing the statute of limitations bars Plaintiff's remaining claims and, alternatively, Plaintiff's failure to warn claim lacked proximate cause. Plaintiff responded (DE [112]) on August 6, 2021, contesting Ethicon's statute of limitations argument and Ethicon's separate strict liability – failure to warn (Count III) argument. Additionally, Plaintiff claims Ethicon did not move for summary judgment on Plaintiff's design defect claim or negligence claim. Plaintiff expressly abandoned the claims for manufacturing defect (Count II), strict liability ‘defective product’ (Count IV), common law fraud (Count VI), fraudulent concealment (Count VII), constructive fraud (Count VIII), negligent misrepresentation (Count IX), breach of express warranty (Count XI), breach of implied warranty (Count XII), consumer fraud (Count XIII), and unjust enrichment (Count XV). Ethicon filed a Reply in Support of Defendant's Motion for Summary Judgment (DE [117]) on August 20, 2021.
See supra n.2.
Additionally, Statements of Material Facts have been filed by the parties. Plaintiff's Statement of Disputed Facts and Counter Statement of Material Facts ("Plaintiff's Statement") (DE [111]), however, does not comply with this Court's Order (DE [68]) or Local Rule. There were fourteen numbered statements of fact in Defendant's Statement of Material Facts in Support of Ethicon's Motion for Summary Judgment ("Defendant's Statement") (DE [88]), each of which included citations to the record. Plaintiff's Statement, however, responds to only seven of these statements. Defendant's Statement (DE [88]) ¶¶ 1–3, 8–9, 12, and 14 remains unchallenged and unrebutted. See (Order (DE [68]) at 3); see also S.D. Fla. L.R. 56.1(b); S.D. Fla. L.R. 56.1(a)(2) ("An opponent's Statement of Material Facts shall clearly challenge any purportedly material fact asserted by the movant that the opponent contends is genuinely in dispute .") (emphasis added). Accordingly, those facts are deemed admitted. See Fed. R. Civ. P. 56(c)(1)(A), (B) ; S. D. Fla. L. R. 56.1(a)(2), (c); see also Fed. R. Civ. P. 56(e) ("If a party fails to properly ... address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion ...."). In response, Defendant filed a Reply to Plaintiff's Counter Statement of Facts ("Defendant's Reply Statement") (DE [117]). II. BACKGROUND FACTS
Local Rule 56.1(a)(3) provides that "[t]he movant shall respond to any additional facts asserted in the opponent's Statement of Material Facts ...." S.D. Fla. L.R. 56.1(a)(3).
Plaintiff suffered from bladder prolapse ("cystocele") and stress urinary incontinence ("SUI"). See (Def. Stat. (DE [88]) at ¶ 2); (Pl. Stat. (DE [111]) undisputed). Cystocele is the abnormal descent or herniation of pelvic organs, such as the bladder, rectum, colon and uterus, from their normal attachment sites in the pelvis. The prolapse happens when the pelvic muscles and tissues can no longer support these organs, causing a woman to experience vaginal pressure, pelvic pain, urinary problems, bowel problems, and pain with sex. SUI is a condition where urine leaks out with sudden pressure on the bladder and urethra, causing the urethral sphincter muscles to open. The pressure leading to the leakage is caused by laughing, sneezing, coughing, exercise, walking, and other activities.
On May 19, 2005, twelve years before filing the Complaint (DE [1]), Plaintiff underwent surgery with Dr. Samowitz, at Memorial Hospital West, in Pembroke Pines, Florida. See (Def. Stat. (DE [88]) at ¶¶ 2–3); (Pl. Stat. (DE [111]) undisputed). During the surgery, Dr. Samowitz implanted Gynemesh ("Gynemesh implant" or "mesh"). Id. Plaintiff first experienced injuries she associates with her Gynemesh implant in November 2012. See (Pl. Fact Sheet (DE [11]) at 7); see also (Def. Stat. (DE [88]) at ¶¶ 5–6); (Pl. Stat. (DE [111]) at ¶¶ 2–3) ("Disputed. ... [Plaintiff] is not a native English speaker. Moreover, when questioned about the timing of her symptoms in her deposition, Ms. Sotolongo makes the clear distinction of when she started to experience symptoms versus when she realized those symptoms were caused by her implant .") (emphasis added). She first saw a healthcare provider for these injuries in November 2012. Id. Plaintiff claims she did not attribute her pain or injuries to the Gynemesh implant until 2015. Id.
Plaintiff cites to her deposition testimony, taken July 31, 2018. (Ex. A. (DE [112]) at page 17 (pages 62 to 65) ¶¶ 20–25) ("But I never knew it was because of the mesh until 2015 when I saw the doctor, the gynecologist.").
See supra n.5.
See supra n.5.
On December 3, 2012, Plaintiff visited the office of Dr. Kelly Suarez, PA-C and Fausto A. DeLaCruz, M.D. with complaints of urinary tract infection and reports the mesh was "not in good condition." (Def. Stat. (DE [88]) at ¶ 7); (Pl. Stat. (DE [111]) at ¶ 4) ("Disputed in part; this fact is incomplete."). Plaintiff further asserts she had persistent shortness of breath and lower back pain. See (Pl. Stat. (DE [111]) at ¶ 4). She was prescribed antibiotics for a suspected urinary tract infection.
On April 8, 2013, Plaintiff complained to Dr. Samowitz of pelvic pain and stress incontinence which began six months prior to this visit. (Def. Stat. (DE [88]) at ¶ 8); (Pl. Stat. (DE [111]) undisputed); see also (JSR (DE [66]) at 4). Dr. Samowitz performed a pelvic exam, finding that Plaintiff had vaginal atrophy, introital stenosis, a small rectocele (rectum falling into vagina), and a small cystocele. See (JSR (DE [66]) at 4). Dr. Samowitz also felt mesh along the anterior vaginal wall. Id. Dr. Samowitz diagnosed Plaintiff with "extrusion of the vaginal mesh" which he attributed to atrophic vaginitis, which is the thinning of the vaginal mucosa due to loss of estrogen. (Def. Stat. (DE [88]) at ¶ 8); (Pl. Stat. (DE [111]) undisputed); see also (JSR (DE [66]) at 4). On April 15, 2013, Dr. Samowitz performed a cystoscopy that revealed a tiny piece of extruded mesh in the anterior vagina. See (JSR (DE [66]) at 4). His diagnosis was SUI, overactive bladder symptoms, and pelvic pain of unclear etiology and also documented severe vaginal atrophy. See (JSR (DE [66]) at 4–5). He prescribed vaginal Premarin cream. Id.
On December 4, 2015, Plaintiff alleges she presented to the office of Dr. Amir Shariati ("Dr. Shariati") complaining that she believed the mesh was starting to come down. See (Pl. Stat. (DE [111]) at ¶ 6); (Def. Reply (DE [117]) at 6) (objecting to relevance as Defendant raises statute of limitations analysis). Fourteen months later, on February 21, 2017, Dr. Shariati removed the exposed mesh. See (Pl. Stat. (DE [111]) at ¶ 10); (Def. Reply (DE [117]) at 10) ("Disputed as phrased; ...."); see also (JSR (DE [66]) at 5). He also removed excess vaginal mucosa and performed an anterior colporrhaphy with sutures. See (JSR (DE [66]) at 5). There were no complications and Plaintiff tolerated the procedure well. Id. Plaintiff was discharged the same day. Id.
At her routine well women exam in December 2017, Plaintiff denied any vaginal or urinary complaints and denied any sexual problems or depression. See (JSR (DE [66]) at 5). Her pelvic exam was normal except for mild atrophic vaginitis. See (JSR (DE [66]) at 5). In February 2018, Plaintiff had an office visit with Dr. Shariati, which indicated she was doing well and no mesh erosion was noted. See (JSR (DE [66]) at 5). Plaintiff, however, "did have a 2.5 cecal tumor and a large hiatal hernia, but those are conditions unrelated to the mesh." See (JSR (DE [66]) at 5).
In Defendant's Statement of the case, Defendant claims Plaintiff's experience with mesh extrusion was likely caused by her prior diagnosis of vaginal atrophy. See (JSR (DE [66]) at 5).
III. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment "is appropriate only 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.’ " Tolan v. Cotton , 572 U.S. 650, 656–57, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam) (quoting Fed. R. Civ. P. 56(a) ); see also Alabama v. North Carolina , 560 U.S. 330, 344, 130 S.Ct. 2295, 176 L.Ed.2d 1070 (2010). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine" if a reasonable trier of fact, viewing all the record evidence, could rationally find in favor of the nonmoving party in light of his burden of proof. Harrison v. Culliver , 746 F.3d 1288, 1298 (11th Cir. 2014). And a fact is "material" if, "under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co. , 357 F.3d 1256, 1259–60 (11th Cir. 2004). "[W]here the material facts are undisputed and do not support a reasonable inference in favor of the non-movant, summary judgment may properly be granted as a matter of law." DA Realty Holdings, LLC v. Tenn. Land Consultants , 631 Fed. Appx. 817, 820 (11th Cir. 2015).
The 2010 Amendment to Rule 56(a) substituted the phrase "genuine dispute" for the former " ‘genuine issue’ of any material fact."
The Court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. SEC v. Monterosso , 756 F.3d 1326, 1333 (11th Cir. 2014). However, to prevail on a motion for summary judgment, "the nonmoving party must offer more than a mere scintilla of evidence for its position; indeed, the nonmoving party must make a showing sufficient to permit the jury to reasonably find on its behalf." Urquilla-Diaz v. Kaplan Univ. , 780 F.3d 1039, 1050 (11th Cir. 2015). "[T]his, however, does not mean that we are constrained to accept all the nonmovant's factual characterizations and legal arguments." Beal v. Paramount Pictures Corp. , 20 F.3d 454, 459 (11th Cir. 1994).
IV. DISCUSSION
In MSJ #2 and #3, Defendant argues the operative statute of limitation bars all of Plaintiff's remaining claims. Defendant further argues Plaintiff failed to raise a genuine issue of material fact showing her claims were timely in opposition to its motions for summary judgment. Plaintiff argues her deposition testimony indicates she did not know the mesh was the cause of her injuries until 2015 when visiting Dr. Shariati and because she filed her Complaint (DE [1]) within four years from her first visit with Dr. Shariati, her claims are timely filed. As this Court finds this issue to be dispositive, the Court will only address whether the statute of limitations bars all remaining claims.
Under Florida law, the statute of limitations for tort actions begins to run on "the date that the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence." § 95.031(2)(b), Fla. Stat. (emphasis added). It is well established that the statute of limitations on a product liability action begins to run when a plaintiff was aware or should have been aware of a possible causal connection between her alleged injuries and the allegedly defective product at issue more than four years before filing suit. See Univ. of Miami v. Bogorff , 583 So. 2d 1000, 1002–1004 (Fla. 1991) ; Doe v. Cutter Biological , 813 F. Supp. 1547 (M.D. Fla. 1993) ; Byington v. A.H. Robins Co., Inc. , 580 F. Supp. 1513, 1517–18 (S.D. Fla. 1984). Florida law charges plaintiffs with knowledge of the contents of their medical records, whether they fully understand the records or not—and legal certainty is not required. Univ. of Miami , 583 So. 2d at 1004.
Here, the parties agree that Florida's four-year limitations controls. See § 95.11(3)(e), Fla. Stat. The parties also agree that because Plaintiff filed suit on February 1, 2018, if the claims accrued at any point before February 1, 2014, the action is time-barred. See (Compl. (DE [1]) Feb. 1, 2018). Thus, the only question before this Court is when Plaintiff's action accrued. "The commencement of the statute of limitations is a question of fact." Morton's Mkt., Inc. v. Gustafson's Dairy, Inc. , 198 F.3d 823, 828 (11th Cir. 1999) (citing In re Beef Indust. Antitrust Litig. , 600 F.2d 1148, 1169-70 (5th Cir. 1979) ). "It cannot be determined upon motion for summary judgment if there is a genuine question as to when it began to run ." Id. Accordingly, this Court's task is to simply "determine whether a genuine question [is present] for trial." Id. A review of the briefings, exhibits, and record evidence reveals there is none.
In Plaintiff's Fact Sheet (DE [11]), Plaintiff swore under oath she first experienced symptoms of her injuries "[a]pproximately November 2012." (Pl. Fact Sheet (DE [11]) at 7, ¶ 6.b.). Plaintiff also swore under oath she first sought treatment from a medical provider for symptoms of her injuries "[a]pproximately November 2012." (Pl. Fact Sheet (DE [11]) at 7, ¶ 6.d.); see also (Def. Stat. (DE [88]) at ¶ 6); (Pl. Stat. (DE [111]) at ¶ 3) ("Disputed. See discussion supra , at ¶ 2."). Plaintiff now contends that there is a dispute of fact because by that time she had not yet "attributed" her injuries to the mesh. Such a statement is contrary to the plain language of the statute. Specifically, section 95.031(2)(b), Florida Statutes, provides the limitations period accrues upon either (1) when the plaintiff discovered facts giving rise to the cause of action, or (2) when the plaintiff should have discovered facts upon the exercise of due diligence:
(b) An action for products liability under s. 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the date that the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence , rather than running from any other date prescribed elsewhere in s. 95.11(3), except as provided within this subsection.
§ 95.031(2)(b), Fla. Stat. (emphasis added).
Furthermore, Plaintiff's "attribution" assertion is controverted by the record evidence. On December 3, 2012, Plaintiff was seen in the office of Dr. Kelly Suarez and Dr. Fausto De La Cruz where she reported complaints related to the mesh implant. The Progress Notes (DE [88-3]) indicate Plaintiff complained of "shortness of breath," "low back pain," "urinary incontinence, bladder / cystocele repair with mesh in past, as per GYN, mesh is not in good condition, stated by [patient]. " (Ex. 3. (DE [88-3]) at 2). Plaintiff does not dispute this, instead, Plaintiff claims the fact is incomplete, includes more symptoms experienced on December 3, 2012, and cites to the Progress Notes (DE [88-3]) attached as Defendant's Exhibit 3. See (Pl. Stat. (DE [111]) at ¶ 4) ("Disputed in part; this fact is incomplete . Ms. Sotolongo presented to the office of Dr. Kelly Suarez, PA-C and Fausto A. DeLaCruz, M.D. with reports of "persistent shortness of breath x more than one yr." and "low back pain" in addition to the urinary incontinence noted by the Defendant. (Doc. 88-3).").
Additionally, it is undisputed, that on April 8, 2013, Plaintiff presented to Dr. Samowitz's office with complaints of pelvic pain and stress incontinence and, after an examination, Dr. Samowitz diagnosed Plaintiff with extrusion of mesh into the vaginal wall. See (Def. Stat. (DE [88]) at ¶ 8); (Pl. Stat. (DE [111]) no response to statement ¶ 8). Plaintiff was referred by Dr. De La Cruz for pelvic pain. See (Ex. 4 (DE [88-4]) at 2). Dr. Samowitz testified that during the office visit Plaintiff told him she "first noticed the pain about 6 months ago," approximately November 2012 . (Ex. 4 (DE [88-4]) at 2).
"Florida law does not require that Plaintiff know the full extent of his injury. Plaintiff need only have notice of the possible invasion of his legal rights." Doe v. Cutter Biological , 813 F. Supp. 1547, 1555 (M.D. Fla. 1993), aff'd, 16 F.3d 1231 (11th Cir. 1994) (citing Univ. of Miami , 583 So. 2d at 1000 ). Instead, a "cause of action accrues when the accumulated effects of the deleterious substance manifest themselves to the claimant in a way which supplies some evidence of a causal relationship to the manufactured product." Carter v. Brown & Williamson Tobacco Corp. , 778 So. 2d 932, 934 (Fla. 2000). When applying the undisputed, material facts to the plain language of section 95.031(2)(b), Florida Statutes, Plaintiff's action affirmatively accrued on December 3, 2012. As such, Plaintiff's action is time-barred. Accordingly, it is hereby
ORDERED AND ADJUDGED that Ethicon, Inc.’s Motion for Summary Judgment and Incorporated Memorandum of Law (DE [87]) is GRANTED . In accordance with Federal Rule of Civil Procedure 58, judgment for DEFENDANT ETHICON, INC. will be entered separately. The Clerk of Court is directed to CLOSE this case and DENY AS MOOT any pending motions. Furthermore, all deadlines are TERMINATED , and all hearings are CANCELLED .
The MDL Court did not issue a ruling on Defendant Ethicon, Inc.’s Motion for Summary Judgment (DE [28]) before the time of transfer. As Defendant Ethicon, Inc.’s Motion for Summary Judgment (DE [28]) and Ethicon, Inc.’s Motion for Summary Judgment and Incorporated Memorandum of Law (DE [87]) raise the same arguments as to the statute of limitations both are technically granted. This Court, however, did not reach the merits of Ethicon, Inc.’s Motion of Defendant for Summary Judgment Based upon Bankruptcy Judicial Estoppel (DE [21]), accordingly, it is denied as moot.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 16th day of March 2022.