Opinion
CV-20-00460-TUC-JCH (EJM)
08-23-2021
Karmen Thornton, Plaintiff, v. Ethicon Incorporated, et al., Defendants.
REPORT AND RECOMMENDATION
Eric J. Markovich United States Magistrate Judge
Pending before the Court are Defendants' Motion for Summary Judgment (Doc. 29) and Defendants' Supplemental Motion for Summary Judgment (Doc. 89). Both motions have been fully briefed by the parties. (Docs. 30, 37, 38, 90, 91, 92, and 94).
Pursuant to the Rules of Practice of this Court, this matter was referred to the undersigned for a Report and Recommendation. (Doc. 76). For the reasons stated below, the Magistrate Judge recommends that the District Court enter an ordering granting Defendants' Motion for Summary Judgment and denying Defendants' Supplemental Motion for Summary Judgment as moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
This products liability action involves pelvic mesh devices manufactured and sold by Defendants Ethicon, Inc. and Johnson & Johnson. Plaintiff Karmen Thornton was implanted with Defendants' TVT-O device on July 13, 2006 and alleges it is defective and has caused her serious injury. (Doc. 1 at 4). Plaintiff filed suit on May 13, 2016 as part of a multidistrict litigation (“MDL”) proceeding in the Southern District of West Virginia presided over by the Honorable Joseph R. Goodwin. (Doc. 1). The case was transferred to this Court on October 28, 2020. (Docs. 61, 63).
Plaintiff's short-form Complaint alleged 18 claims against Defendants: Negligence (Court 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). (Doc. 1).
Prior to the MDL court's transfer order, Defendants filed a motion for summary judgment seeking dismissal of all of Plaintiff's claims based on the statute of limitations. (Doc. 29). Defendants further argued that the following claims should be dismissed: Count III, because Plaintiff cannot establish causation; Count II, because Plaintiff has no proof of a manufacturing error; Counts I, IX, X, and XIV, because they are duplicative of the strict liability failure to warn claims; Counts X and XIV, because they are not supported by Arizona law; Counts VI, VII, VIII, IX, XI, XII, and VIII, because they are repackaged failure to warn claims; Counts XI and XII, because Plaintiff has failed to identify any specific affirmation of fact that became the basis of the bargain as required for express warranty, and the implied warranty claim is not permitted by Arizona law; Count VII, because Plaintiff was not a party to a business transaction with Defendants; Count VI, because Plaintiff cannot establish the elements of fraud; Count VIII, because there was no fiduciary duty between Plaintiff and Defendants; Count XV, because Plaintiff's claim does not sound in contract; and Count IV, because Arizona does not recognize a claim for strict liability-defective product.
In response to Defendants' Motion, Plaintiff withdrew ten claims: Strict Liability- Manufacturing Defect (Count II), Defective Product (Count IV), Common Law Fraud (Count VI), Fraudulent Concealment (Count VII), Constructive Fraud (Count VIII), Negligent Misrepresentation (Count IX), Unjust Enrichment (Count XV), Consumer Fraud (Count XIII), Breach of Implied Warranty (Count XII), and Breach of Express Warranty (Count XI). (Doc. 37 at 14). Therefore, the undersigned recommends that the District Court grant summary judgment in favor of Defendants on those claims.
Thus, Plaintiff's remaining claims are: 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).
After the Court granted Defendants leave to file, Defendants filed a Supplemental Motion for Summary Judgment on Plaintiff's Punitive Damages Claim. (Doc. 89). Defendants argue summary judgment is appropriate because Plaintiff's claim for punitive damages claim is statutorily barred by A.R.S. § 12-689. Plaintiff contends that A.R.S. § 12-689 is inapposite here because New Jersey law applies to Plaintiff's punitive damages claim. (Doc. 91).
II. STANDARD OF REVIEW
Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one that might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In addition, a “genuine” issue means that a reasonable jury could find in favor of the nonmoving party. Id. Thus, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249. The nonmoving party “may not rest upon mere allegations or denials of [the moving party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)).
In evaluating a motion for summary judgment, the Court must make all inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. Finally, “at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; see also Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990) (court may not make credibility determinations or weigh conflicting evidence).
III. ANALYSIS
Defendants contend that all of Plaintiff's claims are barred by Arizona's two-year statute of limitations period for products liability actions. Defendants allege that the limitations period began to run in 2012 when Plaintiff knew, or should have known, that her symptoms were caused by the TVT-O device. Because Plaintiff did not file suit until 2016, Defendants allege that her claims are patently untimely.
Plaintiff agrees that Arizona law applies to her claims. (Doc. 37 at 2 n.4).
Plaintiff contends that it is a question of fact for the jury as to when Plaintiff knew and discovered her injury was attributable to particular conduct; in other words, when Plaintiff had sufficient facts to constitute a cause of action. Plaintiff alleges that she did not make the connection between her symptoms and the TVT-O device until she saw Dr. Twiss in 2016 and had her mesh removed. Thus, the timeliness of Plaintiff's suit depends on when her claims accrued.
Pursuant to Ariz. Rev. Stat. § 12-542 and § 12-551, personal injury actions must be commenced and prosecuted within two years after the cause of action accrues. “Under the ‘discovery rule,' a plaintiff's cause of action does not accrue until the plaintiff knows or, in the exercise of reasonable diligence, should know the facts underlying the cause.” Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 588 (Ariz. 1995). Thus, the discovery rule is an exception to the traditional rule “that the period of limitations begins to run when the act upon which legal action is based took place, even though the plaintiff may be unaware of the facts underlying his or her claim.” Id. A claim does not accrue merely because a plaintiff knows of her injury and its cause. See Walk v. Ring, 202 Ariz. 310, 318 (Ariz. 2002) (refusing to adopt a bright-line “what and who” rule of accrual). Instead, a claim accrues only when the plaintiff has “reason to connect the ‘what' to a particular ‘who' in such a way that a reasonable person would be on notice to investigate whether the injury might result from fault.” Id. at 316; see also Murrell v. Wyeth, Inc., 2013 WL 1882193, at *3 (D. Ariz. May 3, 2013) (“In the product liability context, this means that the plaintiffs ‘need[ ] to know that the product was in some way causally connected to their injuries.'” (quoting Roulston v. Foree Tire Co., Inc., 1990 WL 35216, at *3 (9th Cir. Mar. 29, 1990))). Thus, “an adverse or untoward result, or a failure to achieve an expected result, is not, as a matter of law, always sufficient notice [to identify the fact of injury and investigate the possibility of fault].” Walk, 202 Ariz. at 317.
“When discovery occurs and a cause of action accrues are usually and necessarily questions of fact for the jury.” Doe v. Roe (Doe I), 191 Ariz. 313, 323 (Ariz. 1998). The trier of fact must determine when the plaintiff “knew or should have known facts that would have put a reasonable person on notice to investigate whether her injury had been wrongfully inflicted.” Walk, 202 Ariz. at 321.
At her deposition, Plaintiff was asked how she went about retaining a lawyer for this matter and testified to the following: In 2012, Plaintiff spoke with a friend, Nancy, who had also had a hysterectomy and pelvic mesh procedure, and they discussed stress urinary incontinence and chronic pain. (Thornton Dep. at 22-23). Plaintiff stated that at that point in time, she had not attributed any symptoms to those procedures, but rather to her lumbar fusion. Id. at 23:21-25. Until she saw Dr. Twiss in 2016, she thought her chronic pain was from a lumbar surgery in 2005. Id. at 24:3-8. Nancy did not tell her to contact an attorney; Plaintiff decided to contact one following their conversation. Id. at 24:9-12.
Plaintiff first contacted an attorney in 2012 after seeing a number for the Cartmell firm on television. Id. at 24:13-25:1. She saw a television commercial that she understood to be offering medical information, not an attorney advertisement, but admitted the commercial included the attorney's number. Id. at 25:16-24. When asked whether Plaintiff understood, based on the ad, that some of the things she was experiencing were related to the mesh, Plaintiff responded: “Could be. I didn't understand it. It was a possibility[, ]” and agreed that it was something she was considering. Id. at 26:6-15. When asked again whether, when she saw what she thought was a medical commercial with an attorney's number on it, she was provided with information that pelvic mesh could cause or could contribute to chronic pain, Plaintiff stated “I don't recall.” Id. at 33:20-34:1.
Plaintiff called the Cartmell firm in 2012 after seeing the ad, id. at 26:19-27:7, and completed a form authorizing Cartmell to get her medical records-the same records Defendants had in their exhibits, id. at 27:11-24. After Cartmell obtained the notes from her surgery, they said “Yes, you had a mesh implanted with this that could attribute to you[, ]” and that was really the only information Plaintiff got from them. Id. at 30:25- 31:3. This occurred sometime in 2012 or 2013. Id. at 31:4-5. When asked whether the firm filed a lawsuit for her, Plaintiff stated, “I don't believe so, ” and did not know whether they rejected the claim or not. Id. at 28:6-13. She clarified that she did not hire Cartmell, she inquired of them. Id. at 30:19-21.
When asked to explain how she got from Cartmell to the law firm currently representing her, Wexler Wallace LLP, Plaintiff stated that she didn't feel like she was getting representation so she was referred to Wexler Wallace. Id. at 28:14-29:1. Plaintiff agreed that she fired Cartmell. Id. at 29:2-4. She was referred to Wexler Wallace by Adam Slater's office after finding Adam's name doing research online. Id. at 29:14-19. Plaintiff stated that she found the websites by googling “pelvic mesh” but that she didn't remember seeing an “anti-mesh” site. Id. at 29:21-30:13. She couldn't recall exactly when she contacted Adam Slater's office, but believed it was 2018, not 2013. Id. at 32:19-33:1.
Plaintiff met with Tucson attorney Sarah Showard in 2016, and Ms. Showard filed a complaint on May 13, 2016. Thornton Dep. at 34. Plaintiff agreed that this was four years after she had first contacted a lawyer. Id. at 34:24-35:1. In December 2018 Ms. Showard told Plaintiff to find another lawyer. Id. at 35:19-21. Plaintiff had already done research online and talked to Adam Slater's office prior to Ms. Showard terminating her representation of Plaintiff because Plaintiff “felt that Showard Law was not doing justice in my representation.” Id. at 35:22-36:12.
Plaintiff testified that she first associated her chronic pain, back pain, and painful intercourse with her mesh in 2016, after she saw Dr. Twiss. Id. at 171:6-16. In 2016, Dr. Twiss was the first provider who told Plaintiff that her burning, radiating groin pain was related to her mesh. Id. at 44:7-12. Plaintiff had asked her PCP prior to seeing Dr. Twiss, but she understood that her PCP was not a urologist and was not going to know. Id. at 44:13-23. The “Plaintiff Fact Sheet” Plaintiff submitted as part of the MDL litigation states that Dr. Twiss recommended removal of the pelvic mesh due to pain and erosion. (Doc. 29 Ex. A at 4). Plaintiff reported on the sheet that she began suffering symptoms of bodily injury shortly after implant in late 2006 or early 2007, including chronic pelvic pain, dyspareunia, chronic infections, incontinence, and emotional distress. Id. During Plaintiff's deposition, opposing counsel noted that none of Plaintiff's medical records showed her reporting any complaints to her doctors until after she contacted an attorney. (Thornton Dep. at 151:4-7).
Based on the foregoing, Defendants argue that a reasonable person would have been on notice in 2012 that Plaintiff's TVT-O device was in some way causally connected to her alleged injuries. The undersigned agrees. Plaintiff's testimony is that although she spoke with a friend about her pelvic mesh implant in 2012, contacted a law firm after seeing a television commercial about pelvic mesh, authorized the firm to obtain her medical records, received correspondence from the firm, and understood that her TVT-O device was possibly related to her symptoms, she did not actually know that her injuries were a result of Defendants' allegedly defective product until she saw Dr. Twiss in 2016. Thus, Plaintiff argues that her claim did not accrue until 2016 when Dr. Twiss specifically told her that Defendants' product was causing her symptoms. But that is not the law. The record is clear that Plaintiff saw the television advertisement in 2012, contacted the firm and authorized release of her medical records, and received a response indicating possible fault. (Thornton Dep. at 32:4-13). Further, Plaintiff testified that at the time she saw Dr. Twiss in 2016, she had already retained an attorney. Id. at 22:8-10. Once Plaintiff spoke with her friend, saw the commercial, contacted the law firm, arranged for her records to be sent, received a response, and admitted that she was considering whether her symptoms were related to her mesh, Plaintiff had “reason to connect the ‘what' to a particular ‘who' in such a way that a reasonable person would be on notice to investigate whether [her] injury might result from fault.” Walk, 202 Ariz. at 316. Had none of those things occurred in 2012, a reasonable person might very well have not been on notice to investigate fault until a medical provider stated that symptoms were possibly related to a pelvic mesh implant. See Id. (“the core question is whether a reasonable person would have been on notice to investigate”); see also Hovey v. Cook Inc., 97 F.Supp.3d 836, 844 (S.D. W.Va. 2015) (“Because none of Ms. Hovey's doctors identified a defect in the Stratasis [urethral sling] as the cause of her injuries, a jury could find that Ms. Hovey did not possess facts that would lead a reasonable person to further investigate into wrongdoing until 2013, when Ms. Hovey saw an Internet advertisement.”). But that is not what happened here.
Dr. Sherman examined the urethral area for mesh or tightness of mesh and there was no indication of that or pain elicited in that area. Dr. Sherman did not notice any mesh erosion or band tightening, or any problems with the TVT-O device. Dr. Sherman assessed “pelvic pain syndrome, ” meaning pelvic pain that may be muscular in nature. Plaintiff saw Dr. Sherman in October 2015. Dr. Sherman did not suspect a possible connection between Plaintiff's symptoms and her TVT-O device. (Sherman Dep. at 35- 36). Plaintiff stated that she had rare leakage of urine. On vaginal exam, Dr. Sherman observed some pain with palpation of levator muscles and some muscle spasm on the left.
Furthermore, Plaintiff asserts that she began experiencing symptoms following the implantation of her mesh and that she tried “in vain” from 2009 to 2016 to determine the cause and nature of her symptoms. (Doc. 37 at 4). This assertion lends further support to the undersigned's conclusion that, as of 2012, a reasonable person would have been on notice to investigate possible wrongdoing.
Accordingly, based on the foregoing analysis, the undersigned finds that Plaintiff has failed to demonstrate a genuine issue for trial as to when her cause of action accrued. The undersigned therefore recommends that Defendants' motion for summary judgment be granted because Plaintiff's suit is untimely. Furthermore, because the statute of limitations issue is dispositive of Plaintiff's suit, the undersigned further recommends that Defendants' supplemental motion for summary judgment on Plaintiffs punitive damages claim be denied as moot.
IV. RECOMMENDATION
Accordingly, the Magistrate Judge RECOMMENDS that the District Court enter an order GRANTING Defendants' Motion for Summary Judgment (Doc. 29) and DENYING Defendants' Supplemental Motion for Summary Judgment as moot (Doc. 89).
Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within fourteen days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Fed.R.Civ.P. 72(b). No. reply to any response shall be filed. See Id. If objections are not timely filed, then the parties' rights to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).