Morrow et al v. Ethicon Inc et al, No. 3:2020cv05062 - Document 69 (W.D. Wash. 2020)
Court Description: ORDER granting in part and denying in part 62 Supplemental Motion for Summary Judgment, signed by Judge Benjamin H. Settle. (KMC)
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.g., a preponderance of the evidence in most civil cases. Anderson, 477 15 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual 16 issues of controversy in favor of the nonmoving party only when the facts specifically 17 attested by that party contradict facts specifically attested by the moving party. The 18 nonmoving party may not merely state that it will discredit the moving party’s evidence 19 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. 20 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, 21 nonspecific statements in affidavits are not sufficient, and missing facts will not be 22 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). ORDER - 5 Case 3:20-cv-05062-BHS Document 69 Filed 11/12/20 Page 6 of 12 1 B. Punitive Damages and Discovery Rule and Tolling 2 Ethicon moves for summary judgment on Plaintiffs’ Punitive Damages and 3 Discovery Rule and Tolling claims, arguing that these are not recognized causes of action 4 in Washington. Dkt. 62 at 7. Plaintiffs, on the other hand, assert that they may properly 5 assert the discovery rule as a doctrine to toll the commencement of the limitations period 6 and make a claim for punitive damages at trial. However, Ethicon is correct that 7 Washington law prohibits punitive damages in a product liability action. Laisure-Radke 8 v. Par Pharm., Inc., 426 F. Supp. 2d 1163, 1174 (W.D. Wash. 2006). Ethicon is also 9 correct that the discovery rule is not its own cause of action, but rather is a doctrine that 10 determines when a cause of action accrues. See Green v. A.P.C., 136 Wn.2d 87, 95 11 (1998) (explaining the application of Washington’s discovery rule). The Court therefore 12 grants Ethicon’s motion for summary judgment as to Plaintiffs’ Punitive Damages and 13 Discovery Rule and Tolling claims. 14 C. 15 Strict Liability – Design Defect In its supplemental motion for summary judgment, Ethicon argues for the first 16 time that Plaintiffs’ Design Defect claim is time-barred. Dkt. 62. The Washington 17 Products Liability Act (“WPLA”) governs all claims for product-related harm in 18 Washington. RCW 7.72.010(4). Under the WPLA, a claim must be brought within “three 19 years from the time the claimant discovered or in the exercise of due diligence should 20 have discovered the harm and its cause.” RCW 7.72.060(3). It does not appear that the 21 parties dispute whether the WPLA’s statute of limitations apply to Plaintiffs’ claim; 22 ORDER - 6 Case 3:20-cv-05062-BHS Document 69 Filed 11/12/20 Page 7 of 12 1 rather, the parties disagree over when Plaintiffs’ claim accrued and when the statute of 2 limitations began to run. 3 A statute of limitations begins to run when the underlying claim accrues—that is 4 when a party has discovered or should have discovered the facts to support a cause of 5 action. Green v. A.P.C., 136 Wn.2d 87, 95 (1998). Washington requires “that when a 6 plaintiff is placed on notice by some appreciable harm occasioned by another’s wrongful 7 conduct, the plaintiff must make further diligent inquiry to ascertain the scope of the 8 actual harm.” Id. at 96. To that end, Washington courts have held that “one who has 9 notice of facts sufficient to put him upon inquiry is deemed to have notice of all acts 10 which reasonable inquiry would disclose.” Id. (quoting Hawkes v. Hoffman, 56 Wash. 11 120, 126 (1909)). But the question of when a plaintiff should have discovered the facts to 12 support a cause of action so as to trigger the statute of limitations is ordinarily a question 13 of fact. Id. at 100; see also Adcox v. Children’s Orthopedic Hosp. & Med. Ctr., 123 14 Wn.2d 15, 34–35 (1993); Honcoop v. State, 111 Wn.2d 182, 194 (1988). The defendant 15 bears the initial burden of showing the absence of an issue of material fact. Green, 136 16 Wn.2d at 100; Young v. Key PharMrs. Inc., 112 Wn.2d 216, 225 (1989). 17 Here, Ethicon argues that Mrs. Morrow received notice in 2002 that her symptoms 18 could be related to her implant by Dr. Bouma. Dkt. 62 at 5. According to Ethicon, Mrs. 19 Morrow was told that her symptoms could be related to her TVT implant and that was 20 sufficient to place her on inquiry notice. Ethicon asserts that her claims could have been 21 discovered within the limitations period but Mrs. Morrow chose not to research the issues 22 any further. It further asserts that her admitted awareness of her injuries and the potential ORDER - 7 Case 3:20-cv-05062-BHS Document 69 Filed 11/12/20 Page 8 of 12 1 connection of the injuries to the TVT implant is sufficient, as a matter of law, to trigger 2 the duty to investigate and the statute of limitations. Ethicon thus argues that Mrs. 3 Morrow was placed on inquiry notice in 2002 and that the statute of limitations on 4 Plaintiffs’ design defect claim has run. 5 But Ethicon fails to address whether Mrs. Morrow would have actually discovered 6 that she had a defective product in 2002. Inquiry notice holds that “one who has notice of 7 facts sufficient to put him upon inquiry is deemed to have notice of all acts which 8 reasonable inquiry would disclose.” Green, 136 Wn.2d at 96 (internal quotation omitted). 9 Even if Mrs. Morrow researched further after Dr. Bouma told her that her symptoms 10 could be related to the TVT, the record is silent as to whether a reasonable inquiry would 11 have disclosed issues with her TVT or a defective TVT. The Court therefore may not 12 reasonably find that Mrs. Morrow was on inquiry notice about her TVT issues when 13 evidence is lacking about what she would have discovered upon inquiry. 14 Plaintiffs additionally argue that the discovery rule found in North Coast Air 15 Services, Ltd. v. Grumman Corp., 111 Wn.2d 315 (1988), is applicable to this case, and 16 under the principles of North Coast Air their claim is not time barred. Dkt. 78 at 4. In 17 North Coast Air, a pilot died in a plane crash, and the initial investigation attributed the 18 cause to the pilot’s error and concluded that the plane had no mechanical defects. 111 19 Wn.2d at 317. The plaintiff—the pilot’s father—learned eleven years later that the crash 20 was a result of a defect in the plane only after hearing reports of similar crashes. Id. at 21 317–18. The plaintiff subsequently filed suit for products liability claims, and the 22 defendant moved to dismiss the claims, arguing that they were time barred. Id. at 318–19. ORDER - 8 Case 3:20-cv-05062-BHS Document 69 Filed 11/12/20 Page 9 of 12 1 The Washington Supreme Court therefore addressed whether the statute of limitations for 2 a products liability case begins to run when the harm is or should have been discovered or 3 whether “is it a question for the trier of fact to determine when ‘in the exercise of due 4 diligence’ the product’s relationship to the injury should have been discovered, with the 5 statute of limitations running from that date.” 111 Wn.2d at 317. The court rejected the 6 defendant’s argument that a claim accrues when the claimant knew or should have known 7 the immediately apparent basis for the harm, id. at 322–23, and rather held that the statute 8 of limitations begins to run when the claimant discovered, or should have discovered, the 9 factual causal relationship between the alleged defective product and harm, id. at 319. 10 Importantly, the Washington Supreme Court held that whether the plaintiff in the case 11 knew or should have known about the cause of harm was an unresolved question of fact. 12 Id. at 318. 13 Plaintiffs argue that Mrs. Morrow first attributed her injuries to her TVT implant 14 in 2013 when she saw a television commercial and that there are questions of fact that 15 preclude summary judgment. Dkt. 64 at 7. Plaintiffs assert that Dr. Bouma was not sure 16 about what was causing Mrs. Morrow’s injuries and that Dr. Vye never indicated that the 17 TVT was an issue and rather thought Mrs. Morrow’s injuries was just something she was 18 going through. Plaintiffs thus argue that “there is no evidence that any medical providers, 19 including Dr. Bouma and Dr. Vye, told Mrs. Morrow that the TVT or any of its 20 properties were defective and thus caused her injuries.” Id. at 9. Under the principles of 21 North Coast Air, Plaintiffs argue that the statute of limitations did not begin to run until 22 Mrs. Morrow became aware that a defective product caused her injuries. Plaintiffs argue ORDER - 9 Case 3:20-cv-05062-BHS Document 69 Filed 11/12/20 Page 10 of 12 1 that there are questions of facts as to whether Mrs. Morrow knew or should have known 2 that her injuries were attributable to a TVT. 3 Ethicon responds to this argument, asserting that Plaintiffs “bear the burden of 4 proving that the facts constituting the claim were not and could not have been discovered 5 by due diligence within the applicable limitations period.” Dkt. 65 at 7 (quoting Clare v. 6 Saberhagen Holdings, Inc., 129 Wn. App. 599, 603 (2005)). Here, Ethicon argues that 7 Plaintiffs have not met their burden because Mrs. Morrow admitted to being aware of the 8 potential connection between her TVT implant and her injuries. Yet, “whether a party 9 exercised due diligence is normally a factual issue,” and only when reasonable minds can 10 reach one conclusion can questions of fact be determined as a matter of law. Clare, 129 11 Wn. App. at 603 (citing Winbun v. Moore, 143 Wn.2d 206, 213 (2001); Allen v. State, 60 12 Wn. App. 273, 276 (1991), affirmed, 118 Wn.2d 753 (1992)). 13 The Washington Supreme Court held in North Coast Air whether the plaintiff 14 knew or should have known about the cause of harm was a question of fact. 111 Wn.2d at 15 328. The Court agrees with Plaintiffs that questions of fact exist here as to whether Mrs. 16 Morrow should have discovered the TVT deficiencies prior to 2013. It remains unclear 17 whether physicians prior to 2013 could and did attribute injuries like the ones Mrs. 18 Morrow experienced to mesh implants. The Court therefore declines to hold as a matter 19 of law that Mrs. Morrow failed to exercise due diligence and should have discovered the 20 cause of her harm. It remains a question of fact whether the statute of limitations has run 21 on Plaintiffs’ claim. 22 ORDER - 10 Case 3:20-cv-05062-BHS Document 69 Filed 11/12/20 Page 11 of 12 1 2 D. Loss of Consortium Finally, Ethicon moves for summary judgment on Mr. Morrow’s loss of 3 consortium claim. Loss of consortium is typically thought of as a “loss of society, 4 affection, assistance and conjugal fellowship, and . . . loss or impairment of sexual 5 relations” in the marital relationship. Ueland v. Pengo Hydra-Pull Corp., 103 Wn.2d 131, 6 132 n.1 (1984) (citing Black’s Law Dictionary 280 (5th ed. 1979)). In Washington, a loss 7 of consortium claim is a separate and independent claim rather than a derivative claim. 8 Green, 136 Wn.2d at 101. A loss of consortium claim accrues when the spouse first 9 experiences injury due to loss of consortium. Reichelt v. Johns-Manville Corp., 107 10 11 Wn.2d 761, 776 (1987). Ethicon argues that, as its own claim, the loss of consortium claim is time barred 12 because Mrs. Murrow testified that her painful intercourse began in approximately 2002. 13 Dkt. 62 at 6–7. While Plaintiffs assert that Mr. Morrow did not know that his injuries 14 were related to the defective product until 2013, Dkt. 67 at 2, Plaintiffs do not provide 15 Mr. Morrow’s declaration or any specific facts showing the existence of a genuine issue 16 for trial about when the loss of consortium claim accrued. The evidence provided by 17 Plaintiffs shows when Mrs. Morrow first became aware that her injuries were connected 18 to her TVT implant but is silent as to when Mr. Morrow himself first experienced his 19 injury. Missing facts will not be presumed, Lujan, 497 U.S. at 888–89, and the Court 20 finds that there is no genuine dispute of material fact as to when Mr. Morrow first 21 experienced injury. The Court thus grants Ethicon’s motion for summary judgment on 22 Plaintiffs’ loss of consortium claim. ORDER - 11 Case 3:20-cv-05062-BHS Document 69 Filed 11/12/20 Page 12 of 12 1 IV. ORDER 2 Therefore, it is hereby ORDERED that Ethicon’s supplemental motion for 3 4 summary judgment, Dkt. 62, is GRANTED in part and DENIED in part. Dated this 12th day of November, 2020. A 5 6 BENJAMIN H. SETTLE United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 12
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