# Bryant v. Ethicon, Inc.

> District Court, E.D. Missouri · July 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10233428

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** July 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PEGGY BRYANT AND DEAN BRYANT, )
)
Plaintiffs, )
)
v. ) Case No. 4:20CV365 HEA
)
ETHICON, INC and JOHNSON & JOHNSON, )
)
Defendants. )

AMENDED OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Summary
Judgment, [Doc. No. 15]. Plaintiffs partially oppose the Motion. For the reasons
set forth below, the Motion is denied in part and granted in part.
Facts and Background
On August 3, 2004, Plaintiff Peggy Bryant, a Missouri resident, underwent
implantation of a TVT device for treatment of stress urinary incontinence
performed by Dr. David Keetch in St. Louis, Missouri. On March 17, 2005, Dr.
Keetch performed surgery to remove a portion of the TVT implant that had
become exposed. That procedure also took place in St. Louis, Missouri.
On April 10, 2009, Plaintiff underwent implantation of an AMS Monarc in
St. Louis, Missouri to treat stress urinary incontinence.
On April 27, 2011, Plaintiffs filed a Chapter 13 bankruptcy petition in the
U.S. Bankruptcy Court for the Eastern District of Missouri. Case No. 11-44346

(Bankr. E.D. Mo.). Plaintiffs’ bankruptcy schedules did not disclose any potential
lawsuits; there was no listing of any contingent or unliquidated claims.
On November 30, 2011, the Bankruptcy Court confirmed the Plaintiffs’

Chapter 13 plan. Plaintiffs completed plan payments and received a discharge on
May 22, 2017. Approximately $38,200 in payments were disbursed to creditors,
while more than $81,600 of unsecured claims were discharged without payment.
The Plaintiffs’ bankruptcy was closed on July 10, 2017 and has not been

reopened. Plaintiffs filed a motion in the Bankruptcy Court to allow them to retain
a settlement Peggy Bryant received from a lawsuit subsequent to the filing of the
Bankruptcy Petition. The Bankruptcy Court granted the motion.

Dr. Keetch testified that he had no memory of ever receiving or reviewing
the Instructions for Use for the TVT device. Keetch also testified that, prior to the
implant surgery in August 2004, he was already aware of several potential risks
and complications associated with the TVT, including: acute and/or chronic pain,

acute and/or chronic pain with intercourse, vaginal scarring, infection,
urinary problems, organ or nerve damage, bleeding, wound complications,
inflammation, fistula formation, neuromuscular problems, need for additional
surgeries, recurrence of incontinence, foreign body response, erosion or exposure
of the mesh, and contraction or shrinkage of tissues.

Plaintiffs filed this action on April 10, 2015 in the Southern District of West
Virginia multi-district Ethicon, Inc. Pelvic Repair Systems Products Liability
Litigation, MDL Number 2327, Cause Number 2:15CV4369. Defendants filed the

motion for summary judgment on October 11, 2018. On March 6, 2020, the MDL
Court transferred the action to this court.
Plaintiffs assert the following claims: 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); loss of consortium
(Count XVI); punitive damages (Count XVII); discovery rule and tolling (Count

XVIII).
Plaintiff alleges she has suffered the following injuries from the TVT:
recurrent leakage, multiple surgeries, painful intercourse, mesh that “poked

through the vaginal wall,” multiple UTIs, frequency and urgency, incomplete
emptying, hesitancy, abdominal pain, and depression. She asserts that she first
experienced symptoms of bodily injury “[s]hortly after surgery.”

The parties agree that the substantive law of Missouri applies to this case.
This case was filed directly in the MDL. The MDL Court has ruled that for cases
filed directly in the MDL, “the choice of law that applies is the place where the

plaintiff was implanted with the product.” Belanger v. Ethicon, Inc., No. 2:13-cv-
12036, 2014 WL 346717, at *7 (S.D. W.Va. Jan. 30, 2014). Plaintiff’s implant
surgery occurred in Missouri.
Standard for Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant
a motion for summary judgment if all of the information before the court
demonstrates that there is no genuine dispute as to any material fact and the

moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden is on the
moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc., 838 F.2d
268, 273 (8th Cir. 1988). After the moving party discharges this burden, the

nonmoving party must do more than show that there is some doubt as to the facts.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of

setting forth affirmative evidence and specific facts by affidavit and other evidence
showing that there is a genuine dispute of a material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex,

477 U.S. at 324, 106 S.Ct. 2548. “A dispute about a material fact is ‘genuine’ only
‘if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’ ” Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th

Cir. 2000) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). A party resisting
summary judgment has the burden to designate the specific facts that create a
triable controversy. See Crossley v. Georgia–Pacific Corp., 355 F.3d 1112, 1114
(8th Cir. 2004). Self-serving, conclusory statements without support are not

sufficient to defeat summary judgment. Armour and Co., Inc. v. Inver Grove
Heights, 2 F.3d 276, 279 (8th Cir. 1993).
In ruling on a motion for summary judgment, the court must review the facts

in a light most favorable to the party opposing the motion and give that party the
benefit of any inferences that logically can be drawn from those facts. Matsushita,
475 U.S. at 587; Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.
2005). The Court may not “weigh the evidence in the summary judgment record,

decide credibility questions, or determine the truth of any factual issue.”
Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000).
Discussion
Judicial Estoppel
Defendants initially argue they are entitled to summary judgment under the

judicial estoppel doctrine.
“The doctrine of judicial estoppel prevents a party who ‘assumes a certain
position in a legal proceeding, and succeeds in maintaining that position,’
from later ‘assum[ing] a contrary position.’” Scudder v. Dolgencorp, LLC,
900 F.3d 1000, 1006 (8th Cir. 2018) (alteration in original) (quoting New
Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968
(2001) ). Three considerations “typically inform the decision whether to
apply the doctrine in a particular case:” 1) “a party's later position must be
clearly inconsistent with its earlier position,” 2) whether the party
“succeeded in persuading a court to accept that party's earlier position, so
that judicial acceptance of an inconsistent position in a later proceeding
would create the perception that either the first or the second court was
misled,” and 3) “whether the party seeking to assert an inconsistent position
would derive an unfair advantage or impose an unfair detriment on the
opposing party if not estopped.” New Hampshire v. Maine, 532 U.S. 742,
750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quotations omitted).

Baouch v. Werner Enterprises, Inc., 908 F.3d 1107, 1113 (8th Cir. 2018), cert.
denied, 140 S. Ct. 122, 205 L. Ed. 2d 41 (2019).
Both federal and Missouri courts have long considered judicial estoppel an
equitable doctrine designed to protect the integrity of the judicial process,
preserve the dignity of the courts, and insure order in judicial proceedings.
See New Hampshire, 532 U.S. at 750-51, 121 S.Ct. 1808; Edwards v.
Durham, 346 S.W.2d 90, 101 (Mo. 1961). The doctrine “embodies the
notions of common sense and fair play.” Egan v. Craig, 967 S.W.2d 120,
126 (Mo. App. 1998). Because the issue is raised in numerous contexts, it is
not a doctrine for which “inflexible prerequisites” are appropriate. New
Hampshire, 532 U.S. at 751, 121 S.Ct. 1808. In Taylor and State Board,
very different claims of judicial estoppel were summarily rejected without
the need for extensive analysis. We conclude that the Supreme Court of
Missouri would consider the non-exclusive New Hampshire factors in other
cases when they are relevant.
Kirk v. Schaeffler Grp. USA, Inc., 887 F.3d 376, 384 (8th Cir. 2018).
Defendants argue the Court should exercise its discretion and apply judicial

estoppel doctrine to grant judgment in their favor in this case because Plaintiff
failed to list contingent and unliquidated claim against defendants in her Chapter
13 Bankruptcy proceeding. Plaintiff admittedly did not list claim but urges that the

failure to list it was inadvertent; she is a layperson and did not realize it should
have been listed.
In response, Defendants argue Plaintiffs clearly knew of the claim at several
different times throughout the course of this litigation and still have not moved to

reopen their Bankruptcy proceeding so the Bankruptcy Trustee could ascertain
whether to pursue any contingent funds for Plaintiffs’ former creditors.
The first New Hampshire factor weighs in favor of judicial estoppel.

Plaintiffs clearly took inconsistent positions by failing to amend or reopen the
Chapter 13 Bankruptcy proceeding to list the contingent and unliquidated personal
injury claim while conversely filing this action to obtain a monetary judgment
against Defendants.

The second New Hampshire factor weighs also favors judicial estoppel.
Plaintiffs have “persuaded” the Bankruptcy Court to accept their position that their
assets were listed fully and completely for distribution through the Chapter 13 Plan

of Repayment. They did not allow the Trustee to ascertain whether the Plan should
be modified for the contingent and unliquidated claim, which could possibly
provide more funds for the creditors. Generally, a debtor is required to amend

Chapter 13 bankruptcy schedules to include potential lawsuits because “a Chapter
13 estate includes not only the property the debtor had at the time of filing, but also
wages and property acquired after filing but before discharge.” Combs v. The

Cordish Companies, Inc., 862 F.3d 671, 679 (8th Cir. 2017).
Here, the alleged injuries occurred before Plaintiffs filed their original
bankruptcy petition. As a result, the potential claims should have been included in
the bankruptcy estate. Likewise, assuming Plaintiffs veracity in not realizing they

should have included a potential lawsuit, the bankruptcy schedules should have
been amended at several different times during the course of this litigation.
Significantly, the third New Hampshire factor weighs against judicial

estoppel.
The doctrine of judicial estoppel “protects the integrity of the judicial
process.” Total Petroleum, Inc. v. Davis, 822 F.2d 734, 738 n. 6 (8th
Cir.1987). A court invokes judicial estoppel when a party abuses the judicial
forum or process by making a knowing misrepresentation to the court or
perpetrating a fraud on the court. Id. “Judicial estoppel prevents a person
who states facts under oath during the course of a trial from denying those
facts in a second suit, even though the parties in the second suit may not be
the same as those in the first.” Monterey Dev. Corp. v. Lawyer's Title Ins.
Corp., 4 F.3d 605, 609 (8th Cir.1993). Therefore, a party that takes a certain
position in a legal proceeding, “and succeeds in maintaining that position,”
is prohibited from thereafter assuming a contrary position “simply because
his interests have changed,” especially if doing so prejudices the party “who
acquiesced in the position formerly taken by him.” New Hampshire, 532
U.S. at 748, 121 S.Ct. 1808 (internal quotations and citations omitted).
Stallings v. Hussmann Corp., 447 F.3d 1041, 1047 (8th Cir. 2006).
Unfair detriment is not at issue; Defendants do not claim Plaintiffs’ failure
to disclose the claims in bankruptcy imposed an unfair detriment on them.

Furthermore, Plaintiffs have not received an unfair advantage in this case.
Essentially, Defendants are asking for a windfall in this case, i.e., dismissal of the
claims without a determination of the merits. One injustice cannot justify another.
Rather than dismiss Plaintiffs’ substantive claims, the Court is of the

opinion that it is incumbent on the Court to notify the Bankruptcy Court of the
pendency of this case so it can proceed as it determines appropriate. The Court,
therefore, declines to invoke judicial estoppel to bar Plaintiff's claims.

Learned Intermediary-Counts I and III
Defendants contend they are entitled to summary judgment on the strict
liability claim for failure to warn because plaintiff’s implanting physician, Dr.
Keetch, testified that he did not recall if he read the warnings or if he relied on the

warnings.
A plaintiff alleging failure to warn must establish causation by showing “that
a warning would have altered the behavior of the individuals involved....” Moore v.

Ford Motor Co., 332 S.W.3d 749, 762 (Mo. banc 2011) (internal quotation
omitted); Tune v. Synergy Gas Corp., 883 S.W.2d 10, 14 (Mo. banc 1994). In
cases involving medical devices, Missouri courts apply the learned intermediary
doctrine, which requires a manufacturer to properly warn the doctor of the dangers
involved. Krug v. Sterling Drug, Inc., 416 S.W.2d 143, 146 (Mo. 1967); Kirsch v.

Picker Int'l, Inc., 753 F.2d 670, 671 (8th Cir. 1985). “[T]here are two separate
causation requirements for a failure to warn case: ‘(1) the product for which there
was no warning must have caused plaintiff's injuries; and (2) plaintiff must show a

warning would have altered his behavior.” Cole v. Goodyear Tire & Rubber Co.,
967 S.W.2d 176, 184 (Mo.Ct.App.1998); see also Arnold v. Ingersoll–Rand Co.,
834 S.W.2d 192, 194 (Mo.1992) (en banc).
A heeding presumption exists that “where a plaintiff did not know of a

nonobvious hazard, adequate warnings would have been heeded.” Ware v. Whiting
Corp., No. 4:05–CV–01332, 2007 WL 2409751, at *5 (Mo.E.D. Aug. 20, 2007)
(citing Arnold v. Ingersoll–Rand Co., 834 S.W.2d 192, 194 (Mo.1992) (en banc)).

This presumption may be rebutted “[i]f the defendant produces [rebuttal] evidence
so strong that would necessarily persuade any reasonable trier of fact that an
adequate warning would have been futile….” Bachtel, 747 F.3d at 971.
Lack of recall does not, at this point in the litigation, equate with evidence so

strong that would necessarily persuade any reasonable trier of fact that an adequate
warning would have been futile. Genuine disputes as to any warnings that may
have been given and whether, if so, they would have been heeded. Summary

judgment on Counts I and III is therefore denied.
Prior knowledge of the risks involved do not entitle Defendants to summary
judgment. The record has yet to be fully developed as to the extent of Dr. Keetch’s

knowledge and the effects thereof.
Counts II, IV, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, and XV
Plaintiffs state they will not proceed on several claims, namely: strict

liability – manufacturing defect (Count II); 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);
and unjust enrichment (Count XV). Further, Plaintiffs did not response to
Defendants’ arguments with respect to Count IV (strict liability – defective

product). Accordingly, Ethicon is entitled to summary judgment on these claims,
and the Court will dismiss Counts II, IV, VI, VII, VIII, IX, X, XI, XII, XIII, XIV,
and XV with prejudice.
Conclusion

Based upon the foregoing analysis, Defendants are not entitled to application
of the judicial estoppel doctrine. Nor are they entitled to summary judgment based
upon the learned intermediary theory. They are, however entitled to summary

judgment as to Counts II, IV, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, and XV.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment, [Doc. No. 15], denied in part and granted in part.
IT IS FURTHER ORDERED that summary judgment is granted with
respect to Counts II, IV, VI, VU, VII, IX, X, XI, XII, XIU, XIV, and XV. These

counts are dismissed with prejudice.
IT IS FURTHER ORDERED that the Clerk of the Court shall forward a

copy of this Opinion, Memorandum and Order to be filed in Plaintiffs’ Bankruptcy
Proceedings, with directions to notify the Chapter 13 Trustee as well.
Dated this 22™ day of July, 2020.

UNITED STATES DISTRICT JUDGE

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10233428. Public record. Not legal advice.