DEBORAH KLINE v. JOHNSON JOHNSON

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4355-17T1

DEBORAH KLINE and
JEFFREY DERSTINE, w/h,

          Plaintiffs-Appellants,

v.

JOHNSON & JOHNSON and
ETHICON, INC.,

     Defendants-Respondents.
____________________________

                   Argued October 18, 2019 – Decided March 6, 2020

                   Before Judges Ostrer and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Docket No. L-1236-14.

                   Shay S. Deshpande argued the cause for appellants
                   (Franzblau Dratch, PC, attorneys; Shay S. Deshpande,
                   on the brief).

                   David R. Kott argued the cause for respondents
                   (McCarter & English, LLP, and Riker Danzig Scherer
                   Hyland & Perretti LLP, attorneys; David R. Kott and
                   Kelly Strange Crawford, of counsel; Natalie H.
            Mantell, Amanda M. Munsie and Benjamin D. Heller,
            on the brief).

PER CURIAM

      Plaintiffs Deborah Kline (Kline) and her husband Jeffrey Derstine alleged

in a March 2014 complaint that a polypropylene mesh implanted in Kline's body

to repair a hernia caused significant medical complications and damages. Kline

alleged that defendants Ethicon, Inc. and Johnson & Johnson defectively

designed, manufactured, and labelled the mesh. However, Kline was unable to

present competent evidence that defendants, as opposed to some other medical

device manufacturer, produced the mesh that allegedly caused her harm. For

that reason, Judge Nelson C. Johnson granted defendants' summary judgment

motion, dismissing the complaint with prejudice. The court also barred further

discovery as untimely and likely futile.

      In her appeal, Kline reprises arguments she presented to the trial court.

She contends that her medical expert's opinion created a genuine issue of

material fact regarding the manufacturer's identity. He opined that Johnson &

Johnson made the mesh he surgically removed from Kline's body almost six

years after it was implanted. Kline contends the trial court erred in barring the

expert's opinion as a net opinion. Kline also contends summary judgment was

premature, as she had yet to depose a corporate representative of defendants who

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may have been able to shed light on whether defendants manufactured the mesh.

Kline contends the trial court erred in barring that deposition as untimely.

Finally, Kline argues that even if she could not identify the maker of her mesh,

the court should have allowed her lawsuit to proceed on a "market share theory"

of liability.

       Reviewing the trial judge's order de novo, applying the same standard as

he did, see Henry v. N.J. Dep't of Human Servs.,  204 N.J. 320, 330 (2010)

(describing the standard of review), we affirm substantially for the reason s

Judge Johnson presented in his written opinion.

       Judge Johnson properly concluded that Kline failed to meet her burden

under applicable California law – her hernia surgery occurred in California – to

identify the product manufacturer in order to sustain her causes of action. See

O'Neil v. Crane Co.,  266 P.3d 987, 1005 (Cal. 2012); Garcia v. Joseph Vince

Co.,  148 Cal. Rptr. 843, 846 (Ct. App. 1978). Kline does not challenge the

court's finding that hospital and patient records do not disclose who made the

mesh used to repair Kline's hernia in 2007. Although the surgeon's operative

report referred to "Prolene mesh" – and defendants registered the trademark

Prolene® – he explained he used the term generically to refer to any

polypropylene mesh. Furthermore, defendants' sales records showed they sold


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no Prolene® mesh to Kline's California hospital in the relevant time period.

Absent any other evidence in the record to identify the manufacturer, Kline

relies on her expert's opinion.

        However, Judge Nelson properly rejected it as a net opinion. After the

expert stated that he reviewed the operative report, deposition transcripts, and

the summary judgment papers, he simply concluded, "[I]t is my opinion that the

'mesh' described in the subject records and through my examination of the

subject mesh it [sic] is manufactured by Johnson and Johnson. The term 'Prolene

Mesh' is not a generic term and correctly identifies the product as manufactured

by Johnson and Johnson." This conclusion falls far short of providing the "why

and wherefore" that the net opinion rule requires. See Townsend v. Pierre,  221 N.J. 36, 54 (2015). What about the expert's observations led him to conclude

that defendants made the mesh that he removed from Kline's body (and

preserved ever since in a jar of chemical solution)? The expert does not say. If

there are design or chemical peculiarities that distinguish defendants' product

from their competitors', the expert does not describe them. Nor does he explain

how those telltales could be discerned after all this time. Kline alleged in her

complaint that the mesh "shrinks, oxidizes and becomes brittle and sharp" in the

body.


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      Also, the expert's statement that Prolene® is a registered trademark that

identifies defendants' product is of no consequence. The surgeon who wrote

"Prolene mesh" in the operative report testified that he used the term generically.

The surgeon was like the average person who generically refers to a product

using a trademarked name.1 Therefore, his use of the term "Prolene mesh"

proves nothing except that he used some form of polypropylene mesh.

      Judge Johnson also properly dispatched Kline's suggestion that the court

apply the "market share liability doctrine" to free her from proving defendants

made her mesh. Under the doctrine, a defendant may "be held liable for the

proportion of the judgment represented by its share of th[e] market" for the

product, "unless it demonstrates that it could not have made the product which

caused [the] plaintiff's injuries." Sindell v. Abbott Labs.,  607 P.2d 924, 937

(Cal. 1980). However, the Sindell court applied the doctrine to a drug that

multiple defendants produced "from an identical formula," and where the named

defendants accounted for a "substantial percentage" of the total market. Id. at

936-37.    Here, the summary judgment record includes no evidence that


1
  See McCarthy on Trademarks and Unfair Competition, § 12:8 (5th ed. 2019)
(stating that "[b]uyers or users of a product may sometimes use a trademark in
a generic sense in casual conversation even though when questioned, those
persons are fully aware of the trademark significance of the term," referring to
Kleenex and Tylenol as examples).
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polypropylene mesh products are essentially the same. And, Kline did not join

any other defendants, let alone establish that they account for a "substantial

percentage" of the market.

      Lastly, upon deferential review, we discern no abuse of discretion that

would compel us to disturb the court's order foreclosing further discovery. See

Pomerantz Paper Corp. v. New Cmty. Corp.,  207 N.J. 344, 371 (2011)

(describing standard of review of discovery orders).       Some background is

needed.

      In April 2015, the court warned Kline's counsel at the time that proof that

defendants made Kline's mesh was essential. At a June 2017 case management

conference, Kline's current counsel informed the court that he did not anticipate

the need for further discovery. The court ordered the parties to complete fact

discovery and fact depositions by January 31, 2018.

      Kline's counsel did not comply. On January 17, Kline's counsel emailed

defense counsel, "I will be noticing depositions of your clients for January 31,

2018 at 10:00 a.m. in your office. Please produce your people at that time."

Evidently counsel conferred, and five days later, Kline's counsel followed with

an unsigned draft "notice of deposition for 4:14-2(c) designees," seeking

depositions of persons with knowledge of seven topics, none of which


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specifically asked for a person capable of examining the actual mesh removed

from Kline.

              1.   Development and manufacturing of Prolene
              Mesh, including the make-up of the product.

              2.    Packaging for sale of the mesh product including
              but not limited to product codes, lot.

              3.     Names of distributers, suppliers that defendant
              utilized in 2005, 2006, 2007 to sell mesh products.

              4.   Knowledge regarding sales made to Thousand
              Oaks Surgical Center.

              5.   Notices received by defendant from Thousand
              Oaks Surgical Hospital regarding any recalls of mesh
              products.

              6.    Studies and research performed by defendants
              regarding the efficacy of Prolene Mesh.

              7.    Studies and research performed by defendant
              regarding its mesh products and potential
              complications prior to its launch in 2005.

      Defense counsel responded the next day, objecting that the topics were

too broad and vague, and the notice provided insufficient time. Rule 4:14-2(a)

requires ten days' notice for depositions.    Defendants filed a motion for a

protective order.

      Kline then moved to extend discovery and to compel the deposition of a

corporate representative. In March 2018, Kline's counsel formally served a

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signed deposition notice, seeking the production of a corporate designee who

would be knowledgeable about the following topics:

           1.   Development and manufacturing of Prolene
           Mesh, including the make-up of the product;

           2.    Description of the Prolene Mesh operation
           principle;

           3.    Structure and composition including supporting
           accessories;

           4.   Intended Uses and contra-indications (who
           cannot use this product);

           5.    Product    performance      studies    (research
           information for performance study, technical
           requirements study and its compiling instructions,
           including performance and safety studies[)];

           6.    Information on Bio-safety research;

           7.    Clinical Evaluation Material Reports;

           8.    Risk analysis material reports of Mesh products;

           9.    Product testing reports;

           10.   Safety Performance of Medical device studies;

           11. Infection and Microbial Contamination analysis
           reports;

           12. Packaging for sale of the mesh product including
           but not limited to product codes, lot;



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13. Names of distributers, suppliers that defendant
utilized in 2002, 2[0]03, 2004, 2005, 2006, and 2007 to
sell mesh products in California and near the Los
Ang[e]les area;

14. Knowledge regarding sales made to Thousand
Oaks Surgical Center from 2002-2007;

15. Notices received by defendant from Thousand
Oaks Surgical Hospital regarding any recalls of mesh
products;

16. Studies and research performed by defendants
regarding the efficacy of Prolene Mesh;

17. Studies and research performed by defendant
regarding its mesh products and potential
complications prior to its launch in 2005;

18. Product and development including and risks
associated with Prolene Mesh;

19. Control studies human and animal testing of
Prolene Mesh report;

20. Risk of product use injuries caused in animal and
human trials and studies;

21. All parties involved in search of identification of
sales regarding Deborah Kline's mesh product;

22. The head of product development and sales;
[and]

23. Operating procedure for determining with to
recall a product and warn the public of potential risks
and injuries.


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      In support of the request for further discovery, Kline's counsel contended

that "[t]he purpose of the deposition would be to determine whether Johnson and

Johnson produced the product in question and to determine how far of a search

Johnson and Johnson employees should search their records[,] [i]n addition to

other issues related to the production and history of the Prolene Mesh."

However, in a letter to the court, counsel suggested that he wanted to do more

than scrutinize defendants' document search. Counsel stated that the corporate

designee would be asked to examine the mesh removed from Kline's body, and

state whether it was defendants' product. However, neither the email, draft

notice, nor March 2018 notice, stated that.

      In denying Kline's motions to compel further discovery, and granting

defendants' motion to bar it, the court concluded that Kline's counsel had over

three years to discover evidence to identify Kline's mesh. The court refused "to

allow Plaintiff to prolong this matter even further by seeking to depose some

unknown, unnamed representative of Defendants who is unlikely to be able to

identify the mesh in any event." The court asserted that over time in the body,

"[t]he mesh does not have the same physical characteristics and composition as

it did when it was inserted."




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      Plaintiffs have not demonstrated that the court abused its discretion. The

discovery requests sought too much, too late, and did not comply with the Court

Rule. The informal email was not a formal deposition notice; and, putting

formalism aside, it was so general that defendants could not possibly comply,

even if they wanted. The January 22 "draft" notice was, strictly speaking,

untimely, as it failed to give defendants ten days to respond before the January

31 deadline. See R. 4:14-2(a).

      It was also evident, based on the broadly defined topics, that depositions

could not possibly be completed by January 31. Rather, these were the topics

that plaintiffs' counsel should have been exploring throughout discovery. They

included the nature of the product itself, such as its "[d]evelopment and

manufacturing" and "make-up"; "[s]tudies and research performed by

defendants regarding the efficacy of Prolene Mesh"; and "[s]tudies and research

performed by defendant regarding its mesh products and potential complications

prior to its launch in 2005." The draft notice also referred to sales and notices

related to the specific facility where Kline received a mesh product. Plaintiffs

also sought depositions regarding product packaging, and the names of all

defendants' mesh distributors used in 2005 through 2007. Plaintiffs actually

expanded the list of topics in its March 2018 notice, but that was even more


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untimely. Plaintiffs provide no explanation or excuse for seeking to commence

such broad discovery just before the deadline by which such discovery should

have been completed.

      Notably, neither the draft notice, nor the actual notice served two months

later, explicitly asked for a representative who might be able to identify the

origin of the mesh removed from Kline and preserved in a jar. In any event,

plaintiffs provided no basis for the court to conclude that such an identification

were possible. In sum, we shall not disturb the court's order barring further fact

discovery and denying plaintiffs' motion to extend the discovery period.

      Affirmed.




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