Today we discuss the second summary judgment decision entered in the pelvic mesh MDL bellwether cases.  Stay tuned for a Daubert decision coming soon.  And again, these posts come solely from the Dechert side of the blog.           

This summary judgment ruling can be found at In re: Bard, Inc. Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187, 2:11-cv-01224, 2013 U.S. Dist. LEXIS 78052 (S.D.W.V. June 4, 2013).  Not surprisingly, since we are talking about the same MDL and same bellwether pool, today’s case and yesterday’s case bear some striking similarities.  To begin with, we are dealing with the same product -- Avaulta Plus Biosynthetic Support System – and essentially the same challenges to plaintiff’s claims and to defendant’s affirmative defenses.             

And, many of the rulings were the same.  Summary judgment granted on plaintiff’s manufacturing defect claims (no evidence of deviation from a standard or specification), id.at *8-14, warranty claims (no privity), id. at *24-25, and negligent inspection, marketing, packaging and selling claim (no opposition).  Id. at *25.  The court’s rulings on plaintiff’s motion for summary judgment as to defendant’s affirmative defenses were nearly identical as well.  Id. at *25-35.           

There are, however, two aspects of today’s case that we thought merited separate treatment. The first is an interesting choice of law twist and the second is a different result on failure to warn.            Today’s case involves plaintiff Rizzo who filed her lawsuit in the Northern District of Georgia.  It was then, of course, transferred to the MDL pending in the Southern District of West Virginia.  And, as the court points out, when deciding questions of state law, and MDL judge “must apply the state law that would have applied to the individual case[] had [it] not been transferred for consolidation.”  Id. at *5.  And choice of law is a question of state law.  So, the court had to look at Georgia’s choice of law rules.             

This is where things get interesting because Georgia’s choice of law rules are, well, interesting.  Or, as the court put it – unusual.  First, Georgia is among the minority of states that still adhere to the traditional lex loci delicti rule – apply the law of the place where the wrong occurred.  Id.at *5-6.  In this case, that would be Wisconsin, the place where Ms. Rizzo’s surgery and alleged injuries occurred.  Id.at *7.  But here’s the twist.  Under Georgia law, “the application of another jurisdiction’s laws is limited to statutes and decisions construing those statutes.”  Id.at *6.  So the court is to apply the statutory law of the place where the injury occurred but Georgia common law.  We don’t quite understand why Georgia has decided to draw such a distinction between statutory and common law, but they have.  Maybe some of our Georgian readers can provide some insight.  Whatever the reason, the result in this, and likely many cases, is that different claims are governed by different state law.  Like we said, interesting.            

At the time plaintiff Rizzo filed her suit, Wisconsin had not yet adopted its product liability statute but did have statutes governing certain of defendant’s affirmative defenses.  Therefore, plaintiff’s substantive claims and the affirmative defenses of assumption of the risk and mitigation of damages are governed by Georgia law while Wisconsin law applies to contributory and comparative negligence.  So, plaintiff’s allegations of negligence by the defendant are governed by Georgia law, but defendant’s allegations of negligence by the plaintiff or others are governed by Wisconsin law.  Or, whether the plaintiff was comparatively negligent is a matter of Wisconsin law but whether she assumed the risk is to be decided under Georgia law.  I’m sure you can understand our confusion, or fascination, with this rather unique rule of law.  But, that’s enough of that.  On to the substantive ruling.                  

As with yesterday’s case, the key issue here is the court’s decision on plaintiff’s failure to warn claim.  The claim is the same -- that the defendant failed to warn doctors about a particular resin used in the Avaulta product.  Id. at *17-18.  The court again concluded that it was a fact issue for the jury to decide whether the warnings were adequate overall.  Id. at *18-19.  So, just like yesterday, the court went to the next step.  Was the allegedly inadequate warning a proximate cause of plaintiff’s alleged injury?  Here is where we deviate from the prior case.            

The court started with plaintiff’s testimony.  Like many plaintiffs, she testified that she didn’t recall discussing the risks or potential complications of pelvic mesh surgery with her doctor.  Id. at *20-21.  She further testified that even if she had been told about the risks, she probably would have consented to the surgery anyway.  Id. at *21.  The court found that testimony only raised a possibility that plaintiff would still have consented to the surgery; not enough to break the causal chain.             

But, the court was actually more focused on plaintiff’s testimony that she trusted her doctor.  Id.  That transitioned the analysis to the doctor’s decision to recommend and use the defendant’s product:

[Plaintiff’s] testimony makes clear that her basis for proceeding with the surgery was, in part, her trust in Dr. Kaminski. In other words, her testimony leaves open the question of whether, if Dr. Kaminski was adequately warned of the dangers and would not have taken the same course of action, the surgery still would have proceeded. The question then becomes whether Dr. Kaminski would have implanted the Avaulta products had he known of additional information that the plaintiffs allege Bard should have provided.Id at *21-22. 

Apparently, plaintiff’s surgeon never explicitly answered that question.  However, when asked about the information plaintiff alleges was missing from defendant’s warning, the doctor testified that generally “any data would be helpful” and “every bit of information is important.”  Id. at *22.  That was enough for the court to find a jury question on proximate cause.  Wait a minute. Rewind to yesterday’s decision in which summary judgment was granted on failure to warn.  We reported that that treater actually did answer the ultimate question and in the negative.  In fact, unlike Ms. Rizzo’s surgeon, that doctor testified that he was not provided certain risk information that, if he had known about it, would have changed his decision to use the product.  In re: Bard, Inc. Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187, 2:11-cv-00114, 2013 U.S. Dist. LEXIS 78059 at *19 (S.D.W.V. June 4, 2013).              

Why the different result?  Because yesterday’s treater also unequivocally testified that he didn’t read the defendant’s warnings.  So no amount of different or additional warnings would have mattered because the doctor never would have read them.  And that testimony made it easy for the court to find plaintiff had not met her burden of proof on causation.  The court didn’t have that testimony in today’s case, but it is still plaintiff’s burden to prove that a different warning would have made the doctor not use the product.  And from the testimony quoted in the decision, there was little to suggest that Ms. Rizzo's doctor would have acted differently.  Feels like a stretch to us, but let’s recap.  A strong statement by the plaintiff’s doctor that additional information would have changed his decision coupled with testimony that the doctor didn’t read the defendant’s warnings equals summary judgment.  Some weak testimony that additional information would have been nice to have equals jury question.             

We offered yesterday’s case as an example of the potential power of testimony from a treater or prescriber that she or he didn’t read the product’s label. Today’s case only serves to strengthen that argument.  So, our advice remains the same.  If the doctor didn’t read the label, get that testimony.  It can put an end to a failure to warn claim.