United States District Court, W.D. Louisiana, Monroe Division
L. HAYES, MAG. JUDGE.
A. DOUGHTY, UNITED STATES DISTRICT JUDGE.
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].
following reasons, Plaintiffs' Motion for Partial Summary
Judgment is DENIED.
FACTS AND PROCEDURAL HISTORY
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.
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.
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.
promotional materials for Ethicon mesh products were
developed principally in New Jersey for use and then
disseminated for distribution.
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
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.
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.
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.
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 ...