United States District Court, S.D. West Virginia, Charleston Division
January 6, 2017
CHERYL LANKSTON, Plaintiff,
ETHICON, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER (ORDER RE:
PLAINTIFF'S MOTION FOR RECONSIDERATION)
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
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.
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.
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.
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” 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.
Motion to Reconsider Order on Failure to Warn Claims
Failure to Warn Under the Learned Intermediary
Lankston urges me to reconsider my understanding of
Centocor,  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.
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
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.
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 plaintiffs in
Centocor. Id. The court explicitly declared
Generally, the adequacy of a warning is a question of fact to
be determined by a jury. But when 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. Where the physicians were unequivocal
that new information about the risks would not have changed
their decision to prescribe the medication, an inadequate
warning was not the proximate cause of plaintiff's
injury, and where a physician testifies that he was aware of
the risks of which plaintiff complains, it is then the
plaintiff's burden to prove that a different warning
would have changed the physician's decision to prescribe
the medications. Ackermann, 526 F.3d at 209.
Centocor, 372 S.W.3d at 170 (internal quotations
omitted) (citations omitted).
like the Hamiltons, the plaintiffs in Centocor, Ms.
Lankston has failed to present evidence that her physician
would have acted differently had Ethicon provided a different
warning. See Id. at 170. The Centocor court
made much out of the fact that the Hamiltons failed to show
that the “warning's alleged inadequacies . . .
would have changed [Ms. Hamilton's] physicians'
decision” to prescribe the medication. See Id.
at 172. The court also held that the fact that the
prescribing doctor would have considered alternate
information “does not prove that the presence of such
information would have changed his decision to prescribe . .
. .”Id. Centocor unmistakably illustrates that
if plaintiffs fail to present evidence that a different
warning would have changed the physicians' mind, then
they failed to meet their burden of proof regarding
reasons detailed previously in my Memorandum Opinion and
Order, Ms. Lankston has failed to provide any evidence that
Dr. Ely would have prescribed a different treatment plan had
he received a different warning from Ethicon. Mem. Op. &
The Learned Intermediary Doctrine is Not an Affirmative
Lankston's contention that the learned intermediary
doctrine is not an affirmative defense is indeed supported by
Centocor and Texas law. See Centocor, 372
S.W.3d at 164- 66. This argument, however, does not help
revive her failure to warn claims.
Lankston borrows a quote from Centocor, taken from
the Ackermann case, to suggest that the purpose of
the learned intermediary doctrine is only to delineate to
whom a manufacturer has a duty to warn, “[it] is not
used to show the plaintiff has no valid case.”
Id. at 165 (citing Ackermann, 526 F.3d at
207-8). A close read of the cited passage in
Ackermann reveals the court was specifying that a
manufacturer would not be able to raise the learned
intermediary doctrine as a means of avoiding liability when
it had both inadequately warned an intermediary and been the
proximate cause of the ultimate user's injuries.
Ackermann, 526 F.3d at 207-8.
the Supreme Court of Texas likened the doctrine to a
common-law rule, rather than an affirmative defense.
Centocor, 372 S.W.3d at 164. The court in
Centocor articulated this point in order to hold
that defendants did not have “the burden to plead,
prove, and request jury findings on the learned intermediary
doctrine at trial.” Id. The court found that
“[w]hile the learned intermediary doctrine shifts the
manufacturer's duty to warn the end user to the
intermediary, it does not shift the plaintiff's basic
burden of proof.” Id. 166. Plaintiffs in any
product warning case must show that the warning was
inadequate. Id. Ms. Lankston has failed to satisfy
this element of her claim, and thus there is no genuine
dispute of material fact and Ethicon should be granted
summary judgment as a matter of law.
I FIND that I need not reconsider my previous ruling on the
Motion to Certify Question to the Supreme Court of
Lankston's Motion regarding certifying the question to
the Supreme Court of Texas must also be denied. There does
not appear to be any available mechanism for this court to
provide this relief.
Lankston's questioning of the “Ackermann
rule, ” the current issue before this court, does not
meet the Supreme Court of Texas' requirements for
certification for two reasons. First, according the Texas
State Constitution and the Texas Rules of Appellate
Procedure, the Supreme Court has jurisdiction to answer
questions regarding its law certified from federal
appellate courts. Vernon's Ann. Texas Const.
Art. 5 § 3-c(a); Tex. R. App. Proc. R. 58.1. The
Southern District of West Virginia is not an appellate court.
Secondly, the Supreme Court of Texas “may answer
questions of law certified to it by any federal appellate
court if the certifying court is presented with determinative
questions of Texas law having no controlling Supreme
Court precedent.” Tex. R. App. Proc. R. 58.1
(emphasis added). The “Ackermann rule”
at issue in this case does not meet this requirement because
Centocor is controlling Supreme Court of Texas
precedent that this court must follow.
extent Ms. Lankston is asking for certification to have
Centocor reconsidered, this relief is not possible
either. The Texas Supreme Court's certification rules
“make plain” that it will not accept a certified
issue “unless it presented a question of Texas law
having no controlling Supreme Court precedent.”
Natl Union Fire Ins. Co. of Pittsburgh, Pa. v. Am.
Eurocopter Corp., 692 F.3d 405, 409 (5th Cir. 2012)
(applying Texas law) (internal quotations omitted).
Ms. Lankston's Motion to certify the question to the
Supreme Court of Texas is DENIED.
“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. In Texas, a failure to warn claim fails as a matter of
law unless the plaintiff proves causation- that with a
different warning, a physician would have refrained from
prescribing the product at issue. To the extent Ms. Lankston
requests reconsideration of part of the court's October
4, 2016, Memorandum Opinion & Order [ECF No. 141], her
Motion [ECF No. 144] is DENIED. To the extent she requests
the court to certify a question to the Supreme Court of
Texas, the Motion [ECF No. 144] is DENIED.
court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented party.
 This is in reference to Ackermann
v. Wyeth Pharm., 526 F.3d 203, 208 (5th Cir. 2008).
Because both parties referred to this concept as the
Ackermann rule, I have adopted their shorthand
herein for convenience.
 Centocor v. Hamilton, 372
S.W.3d 140 (Tex. 2012).