Jensen v. American Medical Systems Inc, No. 2:2020cv00072 - Document 97 (E.D. Wash. 2020)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART 35 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Signed by Chief Judge Stanley A Bastian. (AY, Case Administrator)
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consistent and whether the warning portrays the risks involved using the device. Id. 27 A plaintiff is not required to establish the exact wording of the alternative 28 warning. Ayers by and through Ayers v. Johnson & Johnson Baby Prod. Co., 117 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 Case 2:20-cv-00072-SAB ECF No. 97 filed 10/26/20 PageID.7527 Page 5 of 7 1 Wash.2d 747, 756 (1991). Requiring plaintiffs in failure to warn cases to establish 2 the exact wording of an alternative warning would impose too onerous a burden. 3 Id. The jury might agree that a certain type of warning should have been provided, 4 but they might not agree among themselves as to exactly how that warning should 5 have been worded. Id. The statute’s requirement that “the manufacturer could have 6 provided the warnings or instructions which the claimant would have been 7 adequate” is satisfied if the plaintiff specifies the substance of the warning. Id. 8 Here, Plaintiff relies on the testimony of her urogynecology expert, Dr. 9 Bruce Rosenzweig, who opines that the risks and complications associated with the 10 Apogee, Perigee, and Monarc devices were known by AMS and should have 11 been—but were not—relayed to the medical community. This is enough to defeat 12 summary judgment on the question as to whether the warnings were adequate. 2. 13 14 Proximate Cause Under Washington law, “[i]n a products liability suit alleging inadequate 15 warnings, the plaintiff must show that their injury was proximately caused by a 16 product that was ‘not reasonably safe because adequate warnings or instructions 17 were not provided.’” Ayers, 117 Wash.2d at 752. To show proximate causation, the 18 plaintiff must show both cause in fact and legal causation. Id. (citation omitted). 19 “Cause in fact refers to the actual connection between the act and an injury—but 20 for the act, the injury would not have occurred.” Sherman v. Pfizer, Inc., 8 Wash. 21 App. 686, 687 (2019). Legal causation depends on considerations of “logic, 22 common sense, justice, policy, and precedent.” Ayers, 117 Wash.2d. at 756. 23 (quotation omitted). It involves the “determination of whether liability should 24 attach as a matter of law given the existence of cause in fact.” Id. (quotation 25 omitted). 26 Cause in fact is generally a question for the jury. Baughn v. Honda Motor 27 Co., Ltd., 107 Wash.2d 127, 142 (1986). When the facts are undisputed, however, 28 so that an inference can be made that is incapable of reasonable doubt or difference ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 Case 2:20-cv-00072-SAB ECF No. 97 filed 10/26/20 PageID.7528 Page 6 of 7 1 of opinion, factual causation may be a question of law for the court. Id. 2 Defendant relies on the testimony of Dr. Woods, Plaintiff’s physician who 3 implanted the devices in question. Dr. Woods testified that she reviewed the 4 Instructions for Use (IFU) before the surgery. The IFU was reviewed with her at 5 her deposition. She testified she was aware of the risks, including the risks of 6 vaginal surgery. When asked, Dr. Woods testified that at the time she made the 7 decision to use the device, it was a good decision, so she stood by her decision to 8 use the device. 9 Defendant argues that Dr. Woods’ statement precludes Plaintiff from 10 showing that a different, increased warning would have persuaded Dr. Woods to 11 take a different course of action. 12 The Court disagrees with Defendant that Dr. Woods’ statement permits the 13 Court, rather than the jury, to determine proximate cause. First, Dr. Woods 14 qualified her decision by stating that “at the time” she made the decision it was a 15 good decision. A reasonable jury could conclude that she may have made a 16 different decision regarding using Defendant’s device, if she had been given 17 additional warnings at the time. Dr. Woods’ statement is not unequivocal or 18 emphatic enough to take the proximate cause decision from the jury. Second, the 19 Court agrees with Plaintiff that Dr. Woods is not necessarily an unbiased witness. 20 Thus, it will be important for the jury to hear and evaluate her testimony on both 21 direct and cross-examination and determine her credibility. 22 Because genuine issues of material fact regarding whether the warnings 23 provided by Defendant were adequate and whether the failure to provide adequate 24 warnings proximately caused Plaintiff’s injuries, summary judgment on Plaintiff’s 25 failure to warn claim is not appropriate. 26 // 27 // 28 // ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 Case 2:20-cv-00072-SAB ECF No. 97 filed 10/26/20 1 Accordingly, IT IS HEREBY ORDERED: 2 1. PageID.7529 Page 7 of 7 Defendant’s Motion for Summary Judgment, ECF No. 35, is 3 GRANTED, in part; and DENIED, in part. 4 2. Plaintiff’s Strict Liability – Manufacturing Defect Claim (Ct. III) is 5 DISMISSED. 6 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order 7 and forward copies to counsel. 8 DATED this 26th day of October 2020. 9 10 11 12 13 14 15 Stanley A. Bastian United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7
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