Rose et al v. Boston Scientific Corporation, No. 2:2020cv00716 - Document 71 (W.D. Wash. 2020)
Court Description: ORDER granting in part and denying in part Defendant's 41 Motion for Summary Judgment signed by Judge Barbara J. Rothstein. (TH)
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Rose et al v. Boston Scientific Corporation Doc. 71 Case 2:20-cv-00716-BJR Document 71 Filed 07/15/20 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE ) ) ) Plaintiffs, ) ) v. ) ) BOSTON SCIENTIFIC CORPORATION, ) ) Defendant. ) ____________________________________) ALICIA ROSE and LARRY DUNNING, 15 16 I. CASE NO. 2:20-cv-00716-BJR ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT INTRODUCTION Before the Court Motion for Summary 17 18 19 Judgment. Dkt. No. 41. Having reviewed the motion, the opposition thereto, the record of the case, and the relevant legal authorities, the Court will grant in part and deny in part the motion. 20 21 22 23 24 II. BACKGROUND At issue in this case is the transvaginal mesh device, manufactured by Defendant, which Plaintiff Alicia Rose had surgically implanted and now alleges is defective. - Obtryx Device The device, s implanted 25 1 Dockets.Justia.com Case 2:20-cv-00716-BJR Document 71 Filed 07/15/20 Page 2 of 6 1 2 to treat M stress urinary incontinence. Dkt. No. 41 at 2; Dkt. No. 41-1 at 6 (Plaintiff Fact Sheet). She received the surgery in December of 2007 at Skagit Valley Hospital in Mt. Vernon, 3 Washington. Dkt. No. 41-1 at 6; Dkt. No. 6 at 4 (Amended Short form Complaint). She now 4 asserts that the Obtryx Device is defective and has caused permanent injury, such as urinary 5 incontinence, dyspareunia, bowel obstructions, and chronic pelvic pain. See Dkt. No. 41-1 at 7 6 8. 7 Ms. Rose and her husband, Plaintiff Larry Dunning, reside in Washington State. Dkt. No. 8 9 6 at 5; Dkt. No. 41-1 at 3. Accordingly, this matter was transferred to this Court after a Multidistrict 10 Litigation Court in the Southern District of West Virginia handled preliminary matters. Dkt. No. 11 51. 12 Negligence; (II) Strict Liability Design Defect; (III) Strict Liability Manufacturing Defect; (IV) 13 Strict Liability Failure to Warn; (V) Breach of Express Warranty; (VI) Breach of Implied 14 15 16 , including (I) Warranty; (VII) Loss of Consortium; (VIII) Discovery Rule, Tolling and Fraudulent Concealment; and (IX) Punitive Damages. Dkt. No. 6 at 4 5. III. 17 LEGAL STANDARD Federal Rule of Civil Procedure 56 provides that district courts shall grant summary 18 19 judgment if the movant shows that there is no genuine dispute as to any material fact and the 20 movant is entitled to judgment as a matter of law. 21 fact is genuine 22 23 24 25 FED. R. CIV. P. 56(a). there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party, Karasek v. Regents of Univ. of California, 956 F.3d 1093, 1104 (9th Cir. 2020) (quoting Tauscher v. Phoenix Bd. of Realtors, Inc., 931 F.3d 959, 962 (9th Cir. 2019)), and a fact is , Espinoza v. City of Seattle, No. 172 Case 2:20-cv-00716-BJR Document 71 Filed 07/15/20 Page 3 of 6 1 2 cv-1709, 2020 WL 2098037, at *10 (W.D. Wash. May 1, 2020) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 3 The movant bears the initial burden of demonstrating that it is entitled to summary 4 judgment. Espinoza, 2020 WL 2098037, at *11 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 5 322 (1986)). If the movant meets this burden, the nonmovant must present specific evidence based 6 7 8 Id. (citing Celotex, 477 U.S. at 324). IV. 9 10 DISCUSSION A. Preliminary Matters 11 Claims I (Negligence), IV 12 (Strict Liability Failure to Warn), VII (Loss of Consortium), VIII (Discovery Rule, Tolling and 13 Fraudulent Concealment), or IX (Punitive Damages). See generally Dkt. No. 41; see also Dkt. 14 No. 45 at 1 2. Plaintiff, in turn, does not contest summary judgment as to Claims III (Strict 15 16 17 18 19 20 Liability Manufacturing Defect), V (Breach of Express Warranty), and VI (Breach of Implied Warranty) and the Court will grant summary judgment as to these claims. Dkt. No. 45 at 2. Thus, the only disputed cause of action addressed in the Motion for Summary Judgment is Claim II (Strict Liability Design Defect). B. Count II Strict Liability Design Defect 21 22 23 24 25 Restatement (Second) of Torts Section 402A, and comment k therein, has been incorporated into Washington law as part of the Washington Wash. Rev. Code § 7.72. Taylor v. Intuitive Surgical, Inc., 389 P.3d 517, 526 (Wash. 2017) (en banc). 3 Case 2:20-cv-00716-BJR Document 71 Filed 07/15/20 Page 4 of 6 Defendant argues that Plaintiffs 1 k, based on their 2 3 status as unavoidably unsafe products. Dkt. No. 41 at 5. Plaintiffs disagree and argue that 4 comment k only insulates unavoidably unsafe products from liability after the manufacturer meets 5 the prerequisite of providing a proper warning, which Plaintiffs claim Defendant did not provide. 6 Dkt. No. 45 at 3 7.1 7 Restatement Section 402A provides for strict liability for anyone who sells any product 8 9 in a defective condition unreasonably dangerous Am. 10 Law Inst. 1965). Comment k, in turn, provides an exception to the rule of strict liability in the case 11 in the present state of human knowledge, are 12 quite incapable of being made safe for their intended and ordinary use. Id. at cmt. k;2 see also 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Defendant has not responded to this argument, as it did not provide a reply in support of its Motion for Summary Judgment. 2 In full, comment k reads Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk. Restatement (Second) of Torts § 402A cmt. k (Am. Law Inst. 1965). 4 Case 2:20-cv-00716-BJR Document 71 Filed 07/15/20 Page 5 of 6 1 2 3 Taylor, 389 P.3d at where a product is inherently dangerous by nature but is still desirable because of its public benefit, it is an unavoidably unsafe product under comment k 4 As the Supreme Court of Washington made clear in Taylor, however, comment k includes 5 properly prepared, and accompanied by proper directions and 6 7 8 9 warning. Id. at 526 28 (quoting Restatement (Second) of Torts § 402A cmt. k (Am. Law Inst. 1965)); see also Sherman v. Pfizer, Inc., 440 P.3d 1016, 1021 (Wash. Ct. App. 2019). As that Court stated 14 comment k specifies that the exception is not available to a manufacturer who fails ]he seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given [Restatement (Second) of Torts § 402A (1965) comment k] (emphasis added). Thus, by its express terms, proper preparation, marketing, and warnings are prerequisites to a manufacturer being able to qualify for this exception to strict liability. 15 Taylor, 389 P.3d at 527 (emphasis in original). 16 Since the Plaintiffs challenge the adequacy of the Obtryx Device 10 11 12 13 17 18 19 20 fact remains as to this prerequisite. See id. trier of fact determines the prerequisites have been met . C. Remaining Tort Claims remaining tort claims should be incorporated into a single 21 22 product liability claim under the WPLA. Dkt. No. 41 at 8 9. 23 argument in their response to summary judgment. See generally Dkt. No. 45. 24 25 only after the the WPLA is the exclusive remedy for product liability claims, Taylor, 389 P.3d at 523 (quoting Macias v. Saberhagen Holdings, 5 Case 2:20-cv-00716-BJR Document 71 Filed 07/15/20 Page 6 of 6 1 2 3 Inc., 282 P.3d 1069, 1073 (Wash. 2012) (en banc)). fall under its ambit. See Macias, 282 P.3d at 1074 (the WPLA supplants all common law claims or actions based on harm caused by a product To the extent, however, that Defendant argues 4 5 6 7 8 9 10 separate theories of liability. See Dkt. No. 6 at 4 (claiming, for example, both design defect and failure to warn). Thus, Plaintiff is entitled to advance separate claims for each theory of liability. See Wash. Rev. Code § 7.72.030(1) (providing the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided V. 11 12 13 14 15 16 CONCLUSION For the foregoing reasons, the Court except as it pertains to Claims III (Strict Liability Manufacturing Defect), V (Breach of Express Warranty), and VI (Breach of Implied Warranty). Summary Judgment is granted as to these three claims. Dkt. No. 41. 17 18 DATED this 15th day of July, 2020. 19 _______________________________ BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 6
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