Judith Shears v. Ethicon, Inc., No. 22-1399 (4th Cir. 2023)Annotate this Case
Along with her husband, Plaintiff initiated a civil action against Ethicon, Inc. — the manufacturer and seller of the TVT mesh — and its parent company, Johnson & Johnson. Plaintiffs pursued numerous claims for relief, including a strict product liability claim alleging a design defect in the TVT, as well as a claim for negligent design thereof. Plaintiff’s husband joined in the lawsuit by suing for loss of consortium. Plaintiffs filed their lawsuit in the Southern District of West Virginia as part of a multidistrict litigation captioned (the “MDL”).
The Fourth Circuit availing itself of the privilege afforded by the State of West Virginia through the Uniform Certification of Questions of Law Act requested that the Supreme Court of Appeals of West Virginia exercise its discretion to resolve the following certified question of law:
Whether Section 411 of the West Virginia Pattern Jury Instructions for Civil Cases, entitled “Design Defect — Necessity of an Alternative, Feasible Design,” correctly specifies Plaintiff’s burden of proof for a strict liability design defect claim pursued under West Virginia law. More specifically, whether a plaintiff alleging a West Virginia strict liability design defect claim is required to prove the existence of an alternative, feasible product design — existing at the time of the subject product’s manufacture — in order to establish that the product was not reasonably safe for its intended use. And if so, whether the alternative, feasible product design must eliminate the risk of the harm suffered by the plaintiff or whether a reduction of that risk is sufficient.