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Lankston v. Ethicon, Inc.

United States District Court, S.D. West Virginia, Charleston Division

January 6, 2017

CHERYL LANKSTON, Plaintiff,
v.
ETHICON, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER (ORDER RE: PLAINTIFF'S MOTION FOR RECONSIDERATION)

         Pending before the court is Plaintiff's Motion for Reconsideration on Partial Summary Judgment, in the Alternative, Motion to Certify Question to the Texas Supreme Court [ECF No. 142] (“Motion”) filed by the plaintiff, Cheryl Lankston. The defendants Ethicon, Inc. and Johnson & Johnson (collectively “Ethicon”) filed a Response [ECF No. 143], and Ms. Lankston filed a Reply [ECF No. 144]. For the reasons provided below, the plaintiff's Motion for Reconsideration is DENIED, and the plaintiff's alternative Motion to Certify Question is DENIED.

         I. Background

         This case resides in one of seven MDLs assigned to me by the Judicial Panel on Multidistrict Litigation concerning the use of transvaginal surgical mesh to treat pelvic organ prolapse (“POP”) and stress urinary incontinence (“SUI”). In the seven MDLs, there are more than 58, 000 cases currently pending, approximately 28, 000 of which are in the Ethicon MDL, MDL 2327.

         On October 4, 2016, I entered a Memorandum Opinion & Order [ECF No. 141] granting in part and denying in part Ethicon's Motion for Summary Judgment [ECF No. 93]. I found that, “[i]f a physician, as the learned intermediary, does not testify that he or she would not have used or prescribed the product, the causal chain is broken, the plaintiff cannot show causation, and the failure to warn claim fails.” Centocor, Inc. v. Hamilton, 372 S.W.3d 140, 170 (Tex. 2012) (“[W]hen the prescribing physician is aware of the product's risks and decides to use it anyway, any inadequacy of the product's warning, as a matter of law, is not the producing cause of the patient's injuries.”). Mem. Op. & Order 9. I further determined that Ms. Lankston was unable to prove that her treating physician, Dr. Ely, would have refrained from prescribing the TVT-S had he received adequate warnings. Id. at 10. I held that this same reasoning applied to Ms. Lankston's negligent misrepresentation claim, and Ms. Lankston, therefore, did not meet her burden of demonstrating that the inadequate warning was the producing cause of her injuries. Thus, Ethicon's Motion for Summary Judgment was granted with respect to Ms. Lankston's strict liability failure to warn and negligent misrepresentation claims. Mem. Op. & Order 11.

         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 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

         Ms. Lankston argues that I have misinterpreted Texas law regarding the learned intermediary doctrine. Specifically, Ms. Lankston asserts there is no requirement for plaintiffs to show that a proper warning would have changed the mind of the physician-the “Ackerman [sic] rule”[1] as called by Ms. Lankston-and the learned intermediary doctrine is not an affirmative defense. Ms. Lankston proposes that even if the “Ackermann rule” applies, her failure to warn claims should be decided by a jury. In the alternative, Ms. Lankston argues that this question should be certified to the Supreme Court of Texas to interpret the law. Ethicon argues the court should not reconsider its ruling because Ms. Lankston cannot establish the essential causation element as a matter of law, and Ethicon also contends this question cannot be certified to the Supreme Court of Texas.

         1. Motion to Reconsider Order on Failure to Warn Claims

         a. Failure to Warn Under the Learned Intermediary Doctrine

         Ms. Lankston urges me to reconsider my understanding of Centocor, [2] the “most up-to-date learned intermediary framework for product liability cases.” Pl.'s Mot. Recons. 2. After a thorough review of the relevant case law and Ms. Lankston's arguments, I am not persuaded to reconsider my previous ruling.

         Texas follows the learned intermediary doctrine. Centocor, 372 S.W.3d at 158- 59 (holding “the doctrine generally applies within the context of a physician-patient relationship”); see also Bean v. Baxter Healthcare Corp., 965 S.W.2d 656, 663 (Tex. App. 1998) (applying the learned intermediary doctrine to an implantable medical device case); Mem. Op. & Order. 8. “In order to recover for a failure to warn under the learned intermediary doctrine, a plaintiff must show: (1) the warning was defective; and (2) the failure to warn was a producing cause of the plaintiff's condition or injury.” Porterfield v. Ethicon, Inc., 183 F.3d 464, 468 (5th Cir. 1999) (applying Texas law); Mem. Op. & Order. 8-9. However, if “the physician was aware of the possible risks involved in the use of the product but decided to use it anyway, the adequacy of the warning is not a producing cause of the injury and the plaintiff's recovery must be denied.” Centocor, 372 S.W.3d at 173 (quoting Porterfield, 183 F.3d at 468) (internal quotations omitted).

         Thus, even assuming that Ms. Lankston presented sufficient evidence to show that Ethicon's warning to Dr. Ely was inadequate, she still was required to prove the inadequate warning was the producing cause of her injuries. See Centocor, 372 S.W.3d at 170. To prove causation, “the plaintiff must show that a proper warning would have changed the decision of the treating physician, i.e., that but for the inadequate warning, the treating physician would have not used or prescribed the product.” Ackermann v. Wyeth Pharm., 526 F.3d 203, 208 (5th Cir. 2008) (quoting Dyer v. Danek Med., Inc., 115 F.Supp.2d 732, 741 (N.D. Tex. 2000)). Ms. Lankston argues that the court in Centocor did not adopt the holding of Ackermann, which elucidated the “changed physician's mind” requirement, and “[i]f the [Supreme Court of Texas] were fishing for this interpretation of Ackerman [sic], Centocor would have at least discussed it.” Pl.'s Mot. Recons. 5.

         Yet, the court in Centocor did discuss the causation requirement and the “Ackermann rule” at length in its opinion. See Id. at 169-73. One entire section of the opinion was devoted to a discussion of this requirement and how it applied to the ...


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