Newton v. Ethicon, Inc.

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

MARY SUE NEWTON and )

SAMUEL RAY FORD NEWTON, )

)

Plaintiffs, )

) Case No. 3:20-cv-00021-ALB-JTA

v. )

)

ETHICON, INC., et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Ethicon Inc., Johnson & Johnson, and

Ethicon LLC’s (“Defendants”) Motion for Summary Judgment. (Doc. 23). Because

Plaintiff Mary Sue Newton’s claims were not brought within Alabama’s two-year

statute of limitations,1 Defendants’ motion is GRANTED.

1 Plaintiff Samuel Ray Ford Newton, Mary Sue Newton’s husband, asserts a claim

for loss of consortium. Because his claim is derivative of his wife’s claims, the Court

need not address it separately—the success of his claim depends on the success of

his wife’s claims. Dale v. Kelly, 620 So. 2d 632, 632 n.1 (Ala. 1993); Campbell v.

Brown & Williamson Tobacco Corp., No. 02-0184, 2006 WL 8437669, at *2 (S.D.

Ala. May 17, 2006). So, because his wife’s claims are barred by the applicable

statute of limitations, so too is his claim barred. See Reed v. Stempien, 475 So. 2d

841, 842 (Ala. 1985) (applying same limitations period to derivative loss of

consortium claim and claim from which it was derived); Campbell, 2006 WL

8437669, at *2 (“[W]hen an injured spouse’s claim is barred by the applicable statute

of limitations for the underlying injury, the spouse is prevented from recovering for

a loss of consortium claim . . . .”).

BACKGROUND

This case is on remand after pretrial proceedings in MDL litigation over

transvaginal mesh medical devices. See In re Ethicon, Inc., Pelvic Repair System

Products Liability Litigation, 2:12-MD-2327. The following facts are taken in the

light most favorable to the nonmovant, the plaintiffs.

Defendants manufactured and/or marketed transvaginal mesh devices.

Plaintiff was implanted with one of these transvaginal mesh devices on May 31,

2005, in Valley, Alabama, by Dr. James J. Bendell. Almost immediately following

her May 31, 2005 implant surgery, Plaintiff developed complications from the

transvaginal mesh device. Plaintiff began “feeling the fringe . . . from the mesh.”

She developed worsening urinary incontinence, chronic vaginal and pelvic pain,

mesh erosion, and pain with intercourse (“dyspareunia”).

In 2007, Plaintiff was referred to Dr. Brian Raybon to evaluate her

transvaginal mesh complications. Plaintiff understood, in 2007, that the reason for

the referral was because of the device that Dr. Bendell implanted in 2005. On

January 8, 2008, Dr. Raybon removed the suburethral sling and repaired the vaginal

mesh erosions. In his intra-operative findings, Dr. Raybon noted that Plaintiff’s

device “was eroded along the edge of it, the entire way across the urethra and one

pubic rami to the other.”

Plaintiff filed suit against Defendants, the manufacturers of the transvaginal

mesh, on May 13, 2013. The operative complaint, as part of the MDL, brings fifteen

counts that arise from the defective condition of Defendants’ product. Defendants

moved for summary judgment on (1) all claims based on the Alabama two-year

statute of limitations and, separately, on (2) strict liability failure to warn (Count III).

Plaintiff concedes that judgment should be granted on the following counts:

 Strict liability manufacturing defect claim (Count II);

 Strict liability defective product claim (Count IV);

 Common law fraud claim (Count VI);

 Constructive fraud claim (Count VIII);

 Negligent misrepresentation claim (Count IX);

 Negligent infliction of emotional distress claim (Count X);

 Breach of express warranty claim (Count XI);

 Breach of implied warranty claim (Count XII);

 Violation of consumer protection laws claim (Count VIII);

 Gross negligence claim (Count XIV); and

 Unjust enrichment claim (Count XV).

But Plaintiff argues that four substantive counts should go forward to trial:

Negligence (Count I), Strict liability failure to warn (Count III), Strict liability design

defect claim (Count V), and Fraudulent concealment (Count VII).2

STANDARD

The court will grant summary judgment when there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law.

Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). The court

does not weigh the facts. Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919

(11th Cir. 1994). But the court will determine “whether … there are any genuine

factual issues that properly can be resolved only by a finder of fact because they may

reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250 (1986). A mere scintilla of supporting evidence is insufficient. Id.

at 252.

The moving party need not produce evidence disproving the opponent’s

claim; instead, the moving party must demonstrate the absence of any genuine issue

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In turn, the

nonmoving party must go beyond mere allegations to offer specific facts showing a

genuine issue for trial exists. Id. at 324. When no genuine issue of material fact

2 Plaintiff also opposed summary judgment on several counts that are most

accurately described as separately enumerated requests for relief, such as loss of

consortium (Count XVI) and punitive damages (Count XVI).

exists, the court determines whether the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c).

DISCUSSION

Defendants contend that Plaintiff’s claims cannot be maintained in light of

Alabama’s two-year statute of limitations. For products liability actions like this

one, the applicable statute of limitations under Alabama law is two years. Ala. Code

§ 6-2-38(l). This limitations period is not tolled until a plaintiff discovers the cause

of action. See Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 1300, 1305-

06 (11th Cir. 2000). Instead, it begins to run “when there has occurred a manifest,

present injury,” which means there are “observable signs or symptoms . . . the

existence of which is medically identifiable.” Griffin v. Unocal Corp., 990 So. 2d

291, 310 (Ala. 2008).

Here, there is no dispute that Plaintiff was injured by the transvaginal mesh in

the timeframe of 2005 through 2008 such that her claims could have been brought

at that time. She suffered from complications almost immediately after the device

was implanted in 2005 and then had a remedial operation in 2008 to mitigate those

complications. She did not file this lawsuit, however, until 2013. That makes her

case well outside of Alabama’s two-year statute of limitations.

Plaintiff concedes that Alabama’s statute of limitations applies to her claim.

But she makes two arguments that she brought her claims within that statute. Neither

argument is persuasive.

First, Plaintiff argues that her cause of action did not accrue until

“Defendants[] disclosed to the public previously non-publicized risks defendants

had been aware of from the inception of their” device. (Doc. 26 at 5-6). This

argument, put charitably, makes no sense. It is true that, as Plaintiff argues, “there

are cases where the act complained of does not itself constitute a legal injury at the

time, but plaintiff’s injury only comes as a result of, and in furtherance and

subsequent development of, the act defendant has done.” Payton v. Monsanto, 801

So. 2d 829, 835 (Ala. 2001). But this is not one of those cases. Plaintiff was injured

by a defective product, not Defendants’ disclosure of non-publicized risks. Plaintiff

suffered injuries shortly after the transvaginal mesh was implanted in 2005, and she

saw a doctor for an evaluation and operation to mitigate those injuries in 2008. All

the elements of her product liability claims existed at that time. See, e.g., Collins v.

Davol, Inc., 56 F. Supp. 3d 1222, 1229 (N.D. Ala. 2014) (“[U]nder Alabama law, a

tort cause of action stemming from a defective medical device accrues when the

medical device fails and injures the recipient of the device.”).

Second, Plaintiff argues that the statute of limitations was tolled until 2012

because Defendants fraudulently concealed her cause of action until that time. This

argument is on much better legal footing. Alabama law provides that, “[i]n actions

seeking relief on the ground of fraud where the statute has created a bar, the claim

must not be considered as having accrued until the discovery by the aggrieved party

of the fact constituting the fraud, after which he must have two years within which

to prosecute his action.” Ala. Code § 6-2-3. The Alabama courts have extended this

statute to “other torts not arising in fraud” and have held that its tolling rule “applies

to a fraudulent concealment of the existence of a cause of action.” DGB, LLC v.

Hinds, 55 So. 3d 218, 224 (Ala. 2010). In other words, if a plaintiff can prove that

a defendant fraudulently suppressed her cause of action—whatever that action may

be—then she has two years from the discovery of her cause of action to file a lawsuit.

The problem for Plaintiff is that there is no genuine dispute of material fact

on this issue that would warrant denying summary judgment. To benefit from this

rule, a plaintiff must introduce substantial evidence of (1) the time and circumstances

of the discovery of the cause of action, (2) the facts surrounding how defendant

concealed the cause of action or injury, and (3) what prevented plaintiff from

discovering the cause of action. See DGB, LLC, 55 So. 3d at 227. “[G]eneralized

allegations that a defendant had concealed a cause of action, unsupported by specific

facts concerning that concealment or the plaintiffs’ discovery of that concealment,

[are] insufficient to toll the statute of limitations under § 6–2–3.” McKenzie v.

Janssen Biotech, Inc., No. 1170787, 2019 WL 4727472, at *5 (Ala. Sept. 27, 2019)

(rejecting argument for fraud-based tolling in a products liability case); see also

Smith v. National Sec. Ins. Co., 860 So. 2d 343, 345, 347 (Ala. 2003) (rejecting

fraud-based tolling); Lowe v. East End Mem’l Hosp. & Health Ctrs., 477 So. 2d 339,

341–42 (Ala.1985) (same); Miller v. Mobile Cnty. Bd. of Health, 409 So. 2d 420,

422 (Ala. 1981) (same).

Here, Plaintiff has adduced no evidence that (1) she did not know she had

suffered an injury in 2005-2008 because of the transvaginal mesh, (2) that

Defendants concealed her cause of action, or (3) that she could not have discovered

the cause of action absent Defendants’ fraud. Instead, Plaintiff testified in her

deposition that she thought the transvaginal mesh was the cause of her complications

when she sought treatment for those complications in 2007/2008:

When I went to the doctor --I went to several doctors before I found one

that would remove it. When I went to the final doctor that would, he

told me it was twisted and it had carved me and it carved me badly until

he had to graft me and then later he implanted another sling. . . .

Now, I still had inflammation, I still hurt some, but after he grafted me

and put in the new sling, I was better. There was still some pain, yes,

but I was better. It took a while for all this to heal.

(Doc. 23-1). It is true, as Plaintiff argues, that she testified that she first saw an

attorney advertisement for mesh litigation in 2012. See Doc. 35-5. But that testimony

says nothing about whether Defendants fraudulently prevented her from learning

about the existence of her cause of action before then. Plaintiff has not introduced

evidence that would create a jury question on whether Defendants fraudulently

concealed her cause of action.

CONCLUSION

Based on the above reasoning, Defendants’ Motion for Summary Judgment

(Doc. 23) is GRANTED. A final judgment will be entered by separate order.

DONE and ORDERED this 8th day of April 2020.

/s/ Andrew L. Brasher

ANDREW L. BRASHER

UNITED STATES DISTRICT JUDGE