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Shively v. Ethicon Inc.

United States District Court, W.D. Louisiana, Monroe Division

December 27, 2018

TERRY KEY SHIVELY
v.
ETHICON, INC., ET AL. CHARLENE LOGAN TAYLOR
v.
ETHICON, INC., ET AL.

          KAREN L. HAYES, MAG. JUDGE.

          RULING

          TERRY A. DOUGHTY, UNITED STATES DISTRICT JUDGE.

         This is a diversity lawsuit arising out of a products liability claim. Pending before the Court is a Motion for Partial Summary Judgment [Doc. No. 359] filed by Plaintiffs Terry Key Shively (" Mrs. Shively") and Johnny Shively (collectively, "the Shively Plaintiffs") and Charlene Logan Taylor ("Taylor"). Plaintiffs move the Court for a determination that the New Jersey Punitive Damages Act is applicable to their claims. Defendants Ethicon, Inc., and Johnson & Johnson oppose the motion, contending that the Louisiana Products Liability Act applies and bars punitive damages. [Doc. No. 371]. Plaintiffs filed a reply in support of their motion. [Doc. No. 376].

         For the following reasons, Plaintiffs' Motion for Partial Summary Judgment is DENIED.

         I. FACTS AND PROCEDURAL HISTORY

         Ethicon, Inc., is a business corporation organized under the laws of the State of New Jersey with its principle place of business in New Jersey and is a wholly owned subsidiary of Johnson & Johnson. Johnson & Johnson is a business corporation organized under the laws of the State of New Jersey with its principle place of business in New Jersey.

         Defendants designed, manufactured, marketed, sold, and/or distributed the Gynecare Prolift Pelvic Floor System, the Gynecare TVT System, the Gynecare TVT Obturator System, the Gynecare Prolift Anterior, Posterior, and/or Total Pelvic Floor System, and the Gynecare Prolift M Pelvic Floor Repair System designed for the use in surgery to treat pelvic organ prolapse and urinary incontinence.

         The key corporate decisions relating to Pelvic Mesh, including decisions about design, manufacturing, marketing, selling, testing and labeling (which serve as the crux of Plaintiffs' allegations for punitive damages) were made from Ethicon's headquarters in New Jersey. Defendants' Worldwide Director of Medical Affairs for Ethicon Women's Health & Urology is based in New Jersey. The base of operations for Ethicon's worldwide marketing is in New Jersey. Training provided to sales representatives was organized at Ethicon headquarters in New Jersey. Ethicon's sales department operates from Ethicon's corporate headquarters is in New Jersey.

         Additionally, promotional materials for Ethicon mesh products were developed principally in New Jersey for use and then disseminated for distribution.

         On October 20, 2008, and again on July 13, 2011, the FDA issued public health notifications alerting the medical community that transvaginal placement of mesh devices, such as the Gynecare Systems, could lead to potentially serious complications including erosion of the mesh material, infection, bleeding, pain, organ perforation, and urinary problems.

         Following the October 2008 FDA notification regarding the safety of transvaginal mesh, if physicians had questions regarding FDA notifications, the instructions from Ethicon headquarters in New Jersey were to refer all questions to Ethicon's Medical Affairs personnel, also in New Jersey. Complaints from surgeons, patients or sales representatives that Ethicon's pelvic mesh products are not performing the way they should come into a central complaints group in New Jersey for evaluation and investigation and possible additional testing by research and development.

         The Shively Plaintiffs, who are residents of Louisiana, filed their Petition for Damages on August 2, 2010, in the Third Judicial District Court for the State of Louisiana, Parish of Lincoln. The Shively Plaintiffs' Petition for Damages and Amended Short Form Complaint allege that on or about May 8, 2008, Mrs. Shively underwent a procedure in Ruston, Louisiana, and the Prolift and TVT-Oturator products were implanted and caused injury as a result. The Shively Plaintiffs further allege that the products were unreasonably dangerous in construction and composition as they did not meet Defendants' performance standards, were unreasonably dangerous in design because they caused severe problems and an alternative design or treatment was capable of preventing her injuries, that they did not have an adequate warning, and they did not conform to an express warranty. The Shively Plaintiffs assert claims of negligence; strict liability for a manufacturing defect, failure to warn, defective product, and design defect; negligent infliction of emotional distress; breach of an express warranty; breach of an implied warranty; loss of consortium; and under the Louisiana Products Liability Act ("LPLA"), La. Rev. Stat. 9:2800.51, et seq.

         Defendants removed the Shively Plaintiffs' action to the United States District Court for the Western District of Louisiana, Monroe Division, and it was then transferred to the federal multi-district litigation ("MDL"). On March 14, 2017, the then-presiding Court issued a Memorandum Opinion and Order granting in part and denying in part Defendants' Motion for Summary Judgment. In that Opinion, the Court found that "Louisiana law applies to plaintiffs' claims." [Doc. No. 284, p. 3');">p. 3]. The Court further found that the Shively Plaintiffs conceded the claims of negligence; strict liability for manufacturing defect and defective product; negligent misrepresentation; negligent infliction of emotional distress; breach of implied warranty; gross negligence; and unjust enrichment.* The Court otherwise denied Defendants' Motion for Summary Judgment on the Shively Plaintiffs' remaining claims.

         On March 31, 2017, the Court also issued a Memorandum Opinion and Order [Doc. No. 286] granting in part and denying in part the Shively Plaintiffs' Motion for Partial Summary Judgment on Defendants' affirmative defenses. The Court again found that Louisiana law applies. Id. at p.3. The Court further found that Defendants agreed to withdraw the defenses contained in paragraphs 3, 4, 5, 6, 7, 8, 9, 11, 13, 24, 32, 33, 34, 35, 38, 42, 45, 49, 50, 51, 52, 55, 57, 60, 62, 74, 75, 78, and 79 of ...


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