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Nelson v. Johnson & Johnson

United States District Court, E.D. Wisconsin

July 15, 2019

KATHRYN M. NELSON, Plaintiffs,


          William C. Griesbach, Chief Judge

         Plaintiff Kathryn Nelson alleges that she was injured as a result of the implantation of a Prolift device that is made by Defendants Johnson & Johnson, a New Jersey corporation, and Ethicon Inc., a New Jersey corporation and subsidiary of Johnson & Johnson. Nelson initiated this lawsuit in the Eastern District of Wisconsin on May 11, 2012. On June 15, 2012, the case was conditionally transferred to the Southern District of West Virginia under 28 U.S.C. § 1407 for coordination and consolidation of pretrial proceedings. Dkt. No. 5. After the case was conditionally remanded back to the Eastern District of Wisconsin on April 26, 2019, the court held a telephonic status conference on June 18, 2019, where the parties agreed that two fully-briefed motions were ready for resolution by this court: 1) Ethicon's motion for partial summary judgment; and 2) Nelson's motion to file a sur-reply or alternatively strike portions of Ethicon's reply brief. The court has jurisdiction over the case pursuant to 28 U.S.C. § 1332. For the reasons that follow, Ethicon's motion will be granted-in-part and denied-in-part and Nelson's motion will be denied.


         In April of 2009, Nelson consulted with an OBGYN, Dr. Thomas Reinardy, regarding symptoms of pelvic organ prolapse-including cystocele and rectocele-and stress urinary incontinence. On May 14, 2009, Dr. Reinardy performed a total vaginal hysterectomy on Nelson, implanted a Prolift device to treat the prolapse, and a TVT-O-Obturator device to treat the urinary incontinence. Prior to the devices' implantation, Dr. Reinardy attended two training sessions by Ethicon regarding both Prolift and TVT-O that demonstrated proper surgical technique and addressed possible complications. Dr. Reinardy was provided information on the risks and benefits associated with the use of the Prolift in pelvic organ prolapse repair surgery. In addition, Dr. Reinardy had received training during his residency program and was aware that the use of mesh products could result in complications such as pain, erosion, and dyspareunia. Based on his general practice experience, Dr. Reinardy knew that any pelvic floor surgery involves the risks of dyspareunia, vaginal scarring, infection, urinary problems, bleeding, inflammation, neuoromuscular problems, recurrence, failure, or acute and chronic pain. Dr. Reinardy was familiar with the potential adverse reactions to Prolift and risks associated with implantation stated in Prolift's instructions for use (IFU) prior to implanting it in Nelson. Nelson subsequently underwent multiple surgeries for partial mesh excision of the Prolift on July 22, 2010; January 31, 2011; April 13, 2011; and October 3, 2011.


         Summary judgment should be granted when the moving party shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In other words, the time and expense of the parties and the court should not be wasted on a trial when there are no material facts in dispute, one party is entitled to judgment on those facts, and thus there is nothing to try. In deciding a motion for summary judgment, all reasonable inferences are construed in favor of the nonmoving party. Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party opposing the motion for summary judgment must “submit evidentiary materials that set forth specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (quoted source and internal quotation marks omitted). “The nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. Summary judgment is properly entered against a party “who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).


         In its motion for partial summary judgment, Ethicon moves to dismiss the following claims of Nelson's Amended Short Form Complaint:

Count I - Negligence; Count II - Strict Liability - Manufacturing Defect; Count III -Strict Liability - Failure to Warn; Count IV - Strict Liability - Defective Product; Count VI - Common Law Fraud; Count VII - Fraudulent Concealment; Count VIII -Constructive Fraud; Count IX - Negligent Misrepresentation; Count X - Negligent Infliction of Emotional Distress; Count XI - Breach of Express Warranty; Count XII - Breach of Implied Warranty; Count XIII - Violation of Consumer Protection Laws; and Count XV - Unjust Enrichment.

         In her response, Nelson states that she does not oppose dismissal of claims associated with the implantation of the TVT-O-Obturator product, and Counts II, IV, VII, VIII, X, XI, XII, XIII, and XV as they relate to the Prolift product. Pl.'s Resp., Dkt No. 12 at 1-2. Consequently, Ethicon's motion will be granted as it relates to those claims. This leaves for determination Ethicon's motion for summary judgment on Nelson's claims for strict liability and negligent failure to warn, fraud and negligent misrepresentation.

         A. Choice-Of-Law

         As jurisdiction in this district is based on diversity, the court looks to Wisconsins' choice-of-law rules to determine which State's law applies to Nelson's claims. GATX Leasing Corp. v. Nat'l Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir. 1995) (“A federal court sitting in diversity looks to the conflict-of-laws rules in the state jurisdiction in which it sits in order to choose the substantive law applicable to the case.”) Under Wisconsin law, “‘the law of the forum should presumptively apply unless it becomes clear that nonforum contacts are of greater significance.'” Drinkwater v. Am. Family Mut. Ins. Co., 2006 WI 56, ¶ 40, 290 Wis.2d 642, 714 N.W.2d 568 (quoting State Farm Mut. Auto Ins. Co. v. Gillette, 2002 WI 31, ¶ 51, 251 Wis.2d 561, 641 N.W.2d 662).

         Here, Wisconsin's contacts predominate. Nelson lived in Wisconsin when she received the implant and did not leave the state until after filing her case in Wisconsin. In addition, the surgery was performed in Wisconsin by a Wisconsin surgeon and nearly all of her follow-up treatment occurred in Wisconsin. Consequently, the court will apply Wisconsin law to Nelson's claims.

         B. Count I - Negligence and Count III - Strict Liability - Failure to Warn

          As an initial matter, the parties dispute whether the learned intermediary doctrine applies to Nelson's claims. “The doctrine holds that the manufacturer of a prescription drug or medical device fulfills its duty to warn of the product's risks by informing the prescribing physician of those risks.” I ...

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