Mullins et al v. Johnson & Johnson et al
Filing
1525
MEMORANDUM OPINION AND ORDER (Order re: Ethicon's Motion for Reconsideration) The 819 MOTION by Ethicon, Inc., Johnson & Johnson to Reconsider Alternative Design Ruling or, in the Alternative is GRANTED, and the MOTION to Certify Questio n to West Virginia Supreme Court of Appeals is DENIED as moot, as more fully set forth herein; the court finds that in a West Virginia strict liability design defect products liability case, a plaintiff must prove that there was an alternative, feasible designexisting at the time of the product's manufacture - that would have eliminated the risk that injured the plaintiff. Signed by Judge Joseph R. Goodwin on 12/9/2016. (cc: counsel of record; any unrepresented party) (ts)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TERRESKI MULLINS, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 2:12-cv-02952
ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
(Order re: Ethicon’s Motion for Reconsideration)
Pending before the court is a Motion to Reconsider Alternative Design Ruling
or, in the Alternative, Motion to Certify Question to West Virginia Supreme Court of
Appeals [ECF No. 819] filed by the defendants Ethicon, Inc. and Johnson & Johnson
(collectively “Ethicon”). The plaintiffs filed a Response [ECF No. 903], and Ethicon
filed a Reply [ECF No. 922]. For the reasons provided below, Ethicon’s Motion for
Reconsideration is GRANTED, and Ethicon’s alternative Motion to Certify Question
is DENIED as moot.
I.
Background
This case represents the consolidation of 31 out of nearly 28,000 cases filed
against Ethicon. The Ethicon MDL is one of seven MDLs assigned to me related to
pelvic mesh, collectively encompassing nearly 58,000 cases. This action involves
thirty-one West Virginia plaintiffs who were implanted with Tension-free Vaginal
Tape (“TVT”), a mesh product manufactured by Ethicon to treat stress urinary
incontinence (“SUI”). These cases have been consolidated on all claims. See Pretrial
Order No. 184 [ECF No. 25] (“PTO”); Fourth Am. Docket Control Order [ECF No.
258].
On August 4, 2015, I entered a Memorandum Opinion & Order [ECF No. 38]
clarifying PTO No. 182 and PTO No. 184.1 Relevant to the issue sub judice, I ruled
that “there is no West Virginia authority requiring plaintiffs to prove, as part of their
prima facie case, that [a] proposed safer alternative design would have reduced an
individual plaintiff’s specific injuries.” Mem. Op. & Order 17. Further, I determined
that “plaintiff-specific information is not required to develop or defend against stateof-the-art evidence of a safer alternative design.” Id. Subsequent to my ruling, the
Supreme Court of Appeals of West Virginia published its West Virginia Pattern Jury
Instructions for Civil Cases: Instructions on the Law in Plainer Language (2016 ed.)
(“PJI”). The PJI contains an entire section dedicated to products liability law in West
Virginia, and Ethicon now argues that the PJI contravenes my August 4, 2015, ruling.
II.
Legal Standard
“An interlocutory order is subject to reconsideration at any time prior to the
entry of a final judgment.” Fayetteville Inv’rs v. Com. Builders, Inc., 936 F.2d 1462,
1469 (4th Cir. 1991). Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure,
“any order or other decision, however designated, that adjudicates fewer than all the
1
These Orders discussed the initial scope of this consolidation.
2
claims or the rights and liabilities of fewer than all the parties . . . may be revised at
any time before the entry of a judgment.” Fed. R. Civ. P. 54(b). Any party may move
for reconsideration of an interlocutory order “at any time prior to the entry of a final
judgment,” and the court may review its own interlocutory orders sua sponte.
Fayetteville, 936 F.2d at 1472; see also Cap. Sprinkler Inspection, Inc. v. Guest
Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011) (observing that Rule 54(b) recognizes
the district court’s inherent power to reconsider an interlocutory order as justice
requires). Moreover, “[m]otions for reconsideration of interlocutory orders are not
subject to the strict standards applicable to motions for reconsideration of a final
judgment.” Am. Canoe Ass’n, Inc. v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir.
2003). Instead, reconsideration of an interlocutory order is “committed to the
discretion of the district court.” Id. at 515.
III.
Discussion
Ethicon bases its Motion on the PJI’s statement of law regarding the necessity
of establishing the existence and remedial efficacy of an alternative, feasible design
in a strict liability design defect products liability case. See generally Mot.; W. Va.
P.J.I. § 411. Specifically, the West Virginia Supreme Court has adopted the following
pattern jury instruction:
There are many designs which, although they may eliminate a
particular risk, are not practicable to produce. To prove that a design is
defective, [name of plaintiff] must prove that there was an alternative,
feasible design that eliminated the risk that injured [him/her].
W. Va. P.J.I. § 411. Ethicon argues that § 411 demonstrates that the West Virginia
3
Supreme Court understands the law of the state to require a plaintiff to prove that
(1) there was an alternative, feasible design and that (2) such an alternative design
would have eliminated the very risk that injured the plaintiff.
Ethicon points to § 411’s “Notes and Sources” provision to argue that this
requirement is actually not a new pronouncement of law because the drafters of the
instruction specifically rely on two, decades-old, West Virginia Supreme Court cases:
Morningstar v. Black & Decker, 253 S.E.2d 666 (W. Va. 1979) and Church v. Wesson,
385 S.E.2d 393 (W. Va. 1989) (per curiam). Of course, Morningstar pronounced the
general legal standards for establishing defective product strict liability under West
Virginia law:
In this jurisdiction the general test for establishing strict liability in tort
is whether the involved product is defective in the sense that it is not
reasonably safe for its intended use. The standard of reasonable
safeness is determined not by the particular manufacturer, but by what
a reasonably prudent manufacturer’s standards should have been at the
time the product was made.
The term “unsafe” imparts a standard that the product is to be tested by
what the reasonably prudent manufacturer would accomplish in regard
to the safety of the product, having in mind the general state of the art
of the manufacturing process, including design, labels and warnings, as
it relates to economic costs, at the time the product was made.
Syl pts. 4 & 5, Morningstar, 253 S.E.2d at 667. And as for Church, the West Virginia
Supreme Court in that case affirmed the trial court’s order of a directed verdict in the
defendant’s favor because the plaintiff failed to prove the existence of an alternative,
feasible design. See Church, 385 S.E.2d at 396 (ruling that the appellant had failed
to establish a prima facie right of recovery). Thus, Ethicon argues that § 411 of the
4
PJI should be given “particular weight” because it asseverates to be grounded in two
published decisions of the state’s highest court. See Mot. 3.
The plaintiffs present several arguments in opposition to Ethicon’s Motion: (1)
the PJI is optional and not binding on courts, (2) the PJI applies to only non-
consolidated trials in which a plaintiff chooses to “defend” her claim by alleging a
safer alternative design, and (3) a plaintiff may choose among several pathways to
prove design defect.
I readily agree with the plaintiffs’ first argument that the PJI is optional and
not binding on courts. As shown in the PJI’s Preface—written in part by Chief Justice
Menis E. Ketchum II—the drafters emphatically state, “These are pattern jury
instructions that were written to help trial judges and lawyers instruct the jury in a
civil case. THEY ARE NOT BINDING ON THE TRIAL JUDGE.” W. Va. P.J.I. at iii.
Moreover, the drafters point out, “On appeal, the Supreme Court is not bound by the
correctness of these pattern instructions.” Id. Yet in the wake of this caveat, the
drafters offer the following consolation for persons wishing to find authoritative
benefit in using the PJI: “Although these instructions are not binding, they have gone
through multiple edits and revisions after extensive research and editing by the
reporters, the review committees, Judge Alsop, and Justice Ketchum. In addition,
there was an extended effort to put the instructions in plain language that can be
understood by a lay jury.” Id. Thus, the drafters forcefully indicate that the PJI is not
meant to infringe upon the power of the state courts to interpret the law. Instead, the
5
PJI offers a distilled, simplified statement of the law as interpreted by the drafters—
and backed by the blessing of the West Virginia Supreme Court.
At best, the plaintiffs ask me to simply ignore § 411 because it is not binding,
and at worst, the plaintiffs ask me to find that § 411 is an incorrect statement of West
Virginia law. I will do neither. “[A] federal court sitting in diversity has a duty to
apply the operative state law as would the highest court of the state in which the suit
was brought.” Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1156 (4th
Cir. 1992). “In predicting a decision of the state’s highest court we can further
consider, among other things, canons of construction, restatements of the law and
treatises . . . , recent pronouncements of general rules or policies by the state’s highest
court . . . or even that court’s well considered dicta.” Id. As discussed above, the PJI
was written by lawyers, judges, and a justice of the West Virginia Supreme Court and
was adopted after extensive research, editing, and committee review. The Chief
Justice of West Virginia is the official reporter of the PJI, and the official seal of the
West Virginia Supreme Court is emblazoned on the PJI’s cover and title page.
Moreover, the West Virginia Supreme Court owns the copyright to the PJI and
charges a fee for copies. See W. Va. P.J.I. at ii & iii (stating that purchasing a single
set of instructions costs $95). Thus, while the PJI is certainly not binding precedent
in the way a published opinion is, the persuasive force behind the PJI in helping me
predict how the West Virginia Supreme Court would rule on this issue is substantial.
Accordingly, I will carefully consider the persuasive weight of the PJI in ruling upon
6
Ethicon’s Motion.
The plaintiffs next argue that the PJI, “by its express terms,” applies only in a
non-consolidated trial context and only when a plaintiff “chooses to defend her design
defect claim by advocating a safer alternative design.” Resp. 1 (emphasis omitted).
The plaintiffs provide no support for this conclusion other than to simply cite to the
PJI. However, § 411 does not discuss consolidation of cases but instead outlines what
a plaintiff must prove to establish a defective design. See W. Va. P.J.I. § 411.
Similarly, § 411 does not permit a plaintiff to choose anything. Instead, the
instruction states, “To prove that a design is defective, [name of plaintiff] must prove
that there was an alternative, feasible design that eliminated the risk that injured
[him/her].” Id. Accordingly, the PJI, by its express terms, states that any plaintiff
advancing a design defect strict liability claim “must” prove his or her case by
demonstrating the existence and remedial efficacy of an alternative, feasible design.
See id. The plaintiffs’ argument on this point is meritless and unsupported.
Last, the plaintiffs argue that, when read in context with the other design
defect pattern instructions and relevant case law, they may choose alternative
pathways to proving their cases. Specifically, the plaintiffs argue that they may prove
their respective cases by “choosing” to apply the risk-utility test or by “choosing” to
establish the existence and remedial efficacy of an alternative, feasible design. See
Resp. 4–5. The plaintiffs state the following:
Defendants have expressly admitted that the presence of a safer,
alternative design can establish a design defect claim. Moreover, this
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state’s law is clear that a design defect claim can prevail even in the
absence of such an alternative. Thus, should plaintiffs choose to defend
their design defect claim by advocating a safer, alternative design, the
instruction defendants propose is appropriate. But this is by no means
mandatory in establishing a design defect claim under West Virginia
law.
Id. (citation omitted). 2 As an initial point, I found no indication that Ethicon
“admitted” that merely satisfying the alternative, feasible design standard
announced in § 411 would, itself, establish a design defect claim. As for the plaintiffs’
argument that they may “choose” how the law will apply to their strict liability design
defect claims, they offer no legal authority to support such a conclusion—and even so,
it is an illogical proposition.
To understand the law applied to design defect strict liability claims in West
Virginia, I believe it is important to examine what the PJI states regarding the
elements of the whole cause of action. First, § 409 lays out the essential factual
elements of a design defect claim:
§ 409. Design Defect—Essential Factual Elements
[Name of plaintiff] claims the [name of product]’s design injured
[him/her]. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of defendant] made the [name of product];
and
2. That [name of plaintiff’] was harmed while using the
[name of product] in a reasonably foreseeable way; and
3. That the [name of product]’s design was defective; and
The plaintiffs’ use of the phrase “choose to defend their design defect claim” is puzzling given that
the plaintiffs bear the burden of proof in their respective cases.
2
8
4. That the [name of product]’s defective design was a
proximate cause of [name of plaintiff]’s injury.
W. Va. P.J.I. § 409.3 Second, § 410 affirms the use of the risk-utility test under West
Virginia law when assessing the defectiveness of a product’s design:
§ 410. Design Defect—Risk Utility Test
To determine whether a design was defective, you must decide if
the benefits of the design outweigh the risks. To make this decision, you
should consider the following:
1. The potential harm resulting from the use of the [name
of product]; and
2. The likelihood that the harm would occur; and
3. The feasibility of an alternative, safer design at the time
of manufacture; and
4. The cost of an alternative design; and
5. The disadvantages of an alternative design; and
6. [Other relevant factor(s)].
W. Va. P.J.I. § 410. 4 Thus, three of the five enumerated factors a juror should
consider in evaluating the balance between the risks and benefits of a product require
consideration of an alternative, feasible design. Finally, § 411 ties everything
together by instructing the jury on what exactly an alternative, feasible design must
3
The PJI cites Morningstar, 253 S.E.2d at 682–83, as its source for this instruction.
4
The PJI cites Morningstar, 253 S.E.2d at 681 n.20, as its source for this instruction.
9
achieve:
§ 411 Design Defect—Necessity of an Alternative, Feasible Design
There are many designs which, although they may eliminate a
particular risk, are not practicable to produce. To prove that a design is
defective, [name of plaintiff] must prove that there was an alternative,
feasible design that eliminated the risk that injured [him/her].
W. Va. P.J.I. § 411 (emphasis added).5 Thus, §§ 409–411 work together to state the
law in plain language regarding strict liability design defect claims. No section works
independently but works instead to provide meaning to the other sections. Indeed, a
jury would not be properly instructed on the requirements of the claim if § 409 was
not provided to enumerate the claim’s elements of proof, if § 410 was not provided to
list the factors to be considered for defectiveness, and if § 411 was not provided to
explain what an alternative, feasible design must actually achieve.
It is also worth noting that § 411 does not require a plaintiff to show specific
causation. A design defect is not established with specific causation evidence. See
Rheinfrank v. Abbott Labs., Inc., 137 F. Supp. 3d 1035, 1040 (S.D. Ohio 2015) (Dlott,
J.); Keffer v. Wyeth, 791 F. Supp. 2d 539, 548–49 (S.D. W. Va. 2011) (Copenhaver, J.);
Torkie-Tork v. Wyeth, 739 F. Supp. 2d 895, 901 (E.D. Va. 2010) (Ellis, J.). Whether a
product’s design is defective is an inquiry separate from causation. The risk-utility
test assesses the balance between an alleged risk (based on the plaintiff’s theory of
The PJI cites Morningstar, 253 S.E.2d at 666, and Church, 385 S.E.2d at 396, as its sources for this
instruction. The PJI states that the Court in Church relied “upon Syl. Pt. 4 of Morningstar to uphold
a directed verdict for defendant, in a strict liability context, on the ground that the plaintiff had failed
to establish feasibility of a proffered alternative design.” W. Va. P.J.I. § 411.
5
10
defectiveness) and the product’s overall usefulness; evidence of an alternative,
feasible design informs this inquiry. See 1 David G. Owen & Mary J. David, Owen &
Davis on Products Liability § 8:13 (4th ed. 2014) (“[T]he design defect issue actually
litigated is a micro-balance of the pros and cons of the manufacturer’s failure to adopt
some design feature that would have prevented the plaintiff’s harm . . . .”). Once the
trier of fact determines that the plaintiff has satisfied the risk-utility test, the
product’s design is considered defective as to the design feature singled-out by the
plaintiff. To prevail, however, the plaintiff must still satisfy the entirely separate
issue of whether the defective design proximately caused the plaintiff’s injury. These
steps must be repeated for each design feature that a plaintiff alleges is defective.
My inescapable conclusion is that, in a West Virginia strict liability design
defect products liability case, a plaintiff must prove that there was an alternative,
feasible design—existing at the time of the product’s manufacture—that would have
eliminated the risk that injured the plaintiff. This interpretation is not in conflict
with the binding precedent of the West Virginia Supreme Court; instead, it appears
to clarify what was already required. See Church, 385 S.E.2d at 394–96 (ruling that
the appellant had failed to establish a prima facie right of recovery because he had
not provided evidence of an alternative, feasible design); see also Morningstar, 253
S.E.2d at 682 (“We believe that a risk/utility analysis does have a place in a tort
product liability case by setting the general contours of relevant expert testimony
concerning the defectiveness of the product. . . . Through [the expert’s] testimony the
11
jury is able to evaluate the complex technical problems relating to product failure,
safety devices, design alternatives, the adequacy of warnings and labels, as they
relate to economic costs.” (emphasis added)). Accordingly, I FIND that I must
reconsider my previous ruling on the issue.
IV.
Conclusion
“The ultimate responsibility of the federal courts, at all levels, is to reach the
correct judgment under law.” Am. Canoe Ass’n, Inc., 326 F.3d at 515. To the extent it
requests reconsideration of part of the court’s August 4, 2015, Memorandum Opinion
& Order [ECF No. 38], Ethicon’s Motion [ECF No. 819] is GRANTED. The court
FINDS that in a West Virginia strict liability design defect products liability case, a
plaintiff must prove that there was an alternative, feasible design—existing at the
time of the product’s manufacture—that would have eliminated the risk that injured
the plaintiff. To the extent it requests the court to certify a question to the West
Virginia Supreme Court, Ethicon’s Motion [ECF No. 819] is DENIED as moot.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:
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December 9, 2016
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