Opinion
5-20-CV-00920-FB-RBF
04-20-2023
DANIELLE BAKSIC, BRIAN BAKSIC, Plaintiffs, v. ETHICON INC., JOHNSON & JOHNSON, Defendants.
To the Honorable Fred Biery,United States District Judge:
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation concerns (1) the Memorandum in Support of Dismissing Remaining Claims, filed by Defendants Ethicon Inc. and Johnson & Johnson (collectively, “Ethicon”), see Dkt. No. 101, (2) the Response to the Memorandum, filed by Plaintiffs Danielle Baksic and Brian Baksic, see Dkt. No. 103, and (3) the Reply in Support, filed by Ethicon, see Dkt. No. 104. All pretrial matters have been referred for resolution, pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the Western District of Texas. See Dkt. No. 16. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth below, Ethicon's Memorandum in Support of Dismissing Remaining Claims, Dkt. No. 101, should be GRANTED in its entirety, and each of the remaining claims asserted against Ethicon should be DISMISSED WITHOUT PREJUDICE.
Factual and Procedural Background
Plaintiffs Danielle and Brian Baksic commenced this products liability action against Ethicon on August 6, 2020. See Dkt. No. 1 (Complaint). The Baksics and Ethicon each filed motions for summary judgment. See Dkt. Nos. 74 & 75. Ethicon moved for summary judgment on the following claims: (1) failure to warn, whether based in strict liability or negligence, (2) design defect, whether based in strict liability or negligence, and (3) loss of consortium. Count III of the Baksics' Complaint, however, appeared to set forth more general negligence theories, which Ethicon did not address in its motion for summary judgment. See Compl. ¶ 62. The Baksics argued that there were additional negligence claims not addressed in the summary judgment briefing, and they requested “[t]o the extent the Court deems Defendants' [Summary Judgment] Motion sufficient to address those [additional negligence] claims, Plaintiffs respectfully request the opportunity to fully respond.” See Dkt. No. 81 at 1, 1 n.1.
The Court issued a Report and Recommendation recommending that Ethicon's motion be granted in its entirety. See Dkt. No. 98. However, the Court also noted the lack of clarity as to whether and to what extent any additional negligence claims had been sufficiently alleged and remained outstanding. In order to fully determine whether any issues of fact remain that could be brought to trial, the Court ordered additional briefing on that issue. The District Court adopted the Report and Recommendation, see Dkt. No. 102, and the parties each timely filed their additional briefing. Ethicon argued there are no unresolved claims, and the case should be dismissed in its entirety. The Baksics argued that there is at least one outstanding negligence claim that should go to trial or, in the alternative, they requested leave to amend the Complaint.
Analysis
The Baksics' Complaint alleges various negligence claims premised on the “design, research, manufacture, marketing, testing, advertisement, supply, promotion, packaging, sale, and distribution” of the TVT-O device. See Compl. ¶ 62 (Count III). Having reviewed the Complaint and the parties' briefing, the Court concludes that the Baksics failed to state any additional discrete negligence claims, with the possible exception of one premised on a failure to test. But within the context of this case, any claim for negligent failure to test would be subsumed by the other claims that have already been dismissed. And even if such a claim could stand alone, Ethicon has met its burden of showing there is no genuine issue of material fact as to one of its essential elements. Given that there are no remaining negligence claims related to Danielle Bakisic's injuries, Brian Baksic's claim for loss of consortium should also be dismissed because it is derivative of Danielle's claims. Accordingly, the remainder of this case should be dismissed.
A. Plaintiffs Waived the Right to Pursue Any Additional Negligence Claims Other Than Negligent Failure to Test.
In its Brief, Ethicon argues that the allegations based in negligence set forth in Count III of the Complaint are not supported by plausible factual allegations, not recognized under Texas law, or are subsumed by the other claims already dismissed by the Court. See Dkt. No. 101 at 4 (Defendants' Brief). In the Response, the Baksics argue that the Complaint “at the least” sufficiently states a claim for failure to test, but they then make no further substantive arguments regarding what other specific negligence claims have been pleaded. Because the Baksics failed to respond substantively regarding any negligence claims other than for failure to test, and for the reasons stated in Ethicon's Brief, the Court finds no other negligence claim has been plausibly pleaded. The only potential negligence claim that must be addressed, then, is the negligent failure-to-test claim.
B. The Negligent Failure to Test Claim is Subsumed by Plaintiffs' Other Claims, and Plaintiffs Have Additionally Failed to Produce Evidence Supporting a Negligent Failure-to-Test Claim.
Ethicon contends that as a matter of Texas law there is no cognizable claim for negligent failure to test in the products liability context. Texas law only recognizes three types of strict liability claims for products liability-failure to warn, design defect, and manufacturing defect. But it does not necessarily follow that there are no recognized common law negligence claims outside of those categories. While multiple federal courts throughout the country have found products liability claims, even based in negligence, must fit into one of the three recognized categories, at least some courts applying Texas law have recognized such claims. See Romero v. Wyeth Pharms., Inc., No. 1:03-CV-1367, 2012 WL 12547449, at *4 (E.D. Tex. Aug. 31, 2012) (recognizing negligent failure to test as distinct claim and citing relevant authority). However, while negligent failure to test may be viable under Texas law in principle, in the circumstances presented here such a claim would be too “inextricably intertwined” with the Baksics' unsuccessful failure-to-warn and design-defect claims to stand on its own. See Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 437 (Tex. 1997) (discussing how negligent testing was predicated on the duty to test and ascertain dangers that the defendant then had a duty to warn consumers about, concluding the negligent-testing claim was “inextricably intertwined” with the negligent failure-to-warn claim, and ultimately finding that a grant of summary judgment was proper against both).
This is consistent with decisions from many federal district courts throughout the country, which have concluded that negligence claims outside the three recognized categories of products liability are either not recognized as separate claims or collapse into other products liability claims. See Schulze v. Ethicon, Inc., No. 1:22CV26 DAK-JCB, 2023 WL 2914381, at *2 (D. Utah Apr. 12, 2023) (providing an overview of the issue and collecting authorities).
The Court granted judgment as a matter of law in favor of Ethicon on the failure-to-warn claim because there is no genuine dispute of material fact regarding the causal link between the allegedly inadequate warning and the claimed injuries. In light of this, the Baksics cannot establish the necessary element of causation to support a discrete failure-to-test claim. Like in Grinnell, the two claims are “inextricably intertwined.” Had Ethicon performed more testing, the warning may have been more detailed, but the Court has already found there was no causation as a matter of law even assuming an inadequate warning. Summary judgment for one means summary judgment for the other.
Additionally, the Court has already ruled in Ethicon's favor on the design defect claim because there was no genuine dispute of material fact regarding the availability of a safer alternative device. One could perhaps argue that if Ethicon had performed more testing, it might have eventually produced some sort of safer alternative product in the future. But again, causation presents an insurmountable problem. There are no facts in the record to support a finding that had Ethicon done more testing, it would have developed a safer alternative, and that any safer alternative would have been available (including by obtaining FDA approval) by the time of Danielle Baksic's surgery. The only evidence the Baksics point to in support of the negligent-testing claim are expert opinions stating Ethicon did not adequately investigate and test the TVT-O mesh device. See Dkt. No. 103 at 10-12 (discussing evidence from expert reports) (Plaintiffs' Response). This may be sufficient to raise a genuine dispute of material fact as to the adequacy of the testing Ethicon performed, but it does not point to a causal link between the allegedly inadequate testing and Danielle Baksic's actual injuries. Further, the Baksics' casespecific expert, Dr. Margolis, did not address failure to test as a discrete claim.
“When a defendant moves for summary judgment and identifies a lack of evidence to support the plaintiff's claim on an issue for which the plaintiff would bear the burden of proof at trial, then the defendant is entitled to summary judgment” unless the plaintiff can produce evidence to support the claim. James v. State Farm Mut. Auto. Ins. Co., 743 F.3d 65, 68 (5th Cir. 2014). Ethicon has met that burden. To the extent the failure to test could somehow be disentangled from the other claims that have already been dismissed, there is no remaining genuine dispute of material fact to be heard at trial. Finally, because Brian Baksic's loss of consortium claim is derivative of Danielle's claims, that claim should also be dismissed.
C. Leave to Amend the Complaint is Not Warranted.
In their Response, the Baksics alternatively requested leave to amend the Complaint to the extent the Court determines the Complaint does not sufficiently state any additional negligence claims. Leave to amend, however, is not warranted here. As discussed above, the Baksics waived any additional negligence claims other than negligent failure to test. And the negligent failure-to-test claim is subsumed by the failure-to-warn and design-defect claims, which have already been dismissed. To the extent a failure-to-test claim could be viewed as a discrete claim, it should nevertheless be dismissed because at this late stage there is no evidence in the record to support the crucial element of causation. Amending the Complaint would not cure these defects. Accordingly, the request for leave to amend should be denied.
The Baksics also lodge numerous procedural complaints in an attempt to avoid dismissal, for example by arguing the deadline to file dispositive motions has passed and their ability to fully respond has been prejudiced because Ethicon never properly moved for summary judgment on the remaining claims. But the Court explicitly ordered additional briefing on any potentially outstanding claims out of an abundance of caution to ensure no additional claims or factual disputes remained. The parties timely complied with that Order. The Baksics have had since August of 2020 to conduct discovery and develop evidence to support claims in the Complaint. And the Baksics had thirty days to prepare a response to Ethicon's Brief and to explain to the Court what legal claims and factual issues remained in this case. The Baksics' procedural complaints are therefore not well-taken and cannot in any event change the fact that there is simply no remaining issue to be heard at trial.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that Defendants' Memorandum in
Support of Dismissal of Remaining Claims, Dkt. No. 101, be GRANTED, and that any and all remaining claims asserted against Defendants be DISMISSED WITHOUT PREJUDICE.
Having considered and acted upon all matters for which the above-entitled and numbered case was referred, it is ORDERED that the above-entitled and numbered case is RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.