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In Salinero, for example, the plaintiffs were from Florida, but the defendant had manufactured the allegedly defective product in New Jersey.
Summary of this case from Goodnight v. Bos. Sci. Corp.Opinion
Case No. 1:18-cv-23643-UU
10-10-2019
Charlotte SALINERO, et al., Plaintiffs, v. JOHNSON & JOHNSON, et al., Defendants.
James L. Ferraro, James Louis Ferraro, Jr., Daniel J. DiMatteo, Leslie Rothenberg, Mathew Daniel Gutierrez, The Ferraro Law Firm P.A., Miami, FL, Gabriel Santiago Saade, The Saade Law Firm, P.A., Coral Gables, FL, for Plaintiffs. Andrew Russell Kruppa, Amanda Elizabeth Preston, Beatriz E. Jaramillo, Squire Patton Boggs (US) LLP, Andrea Cox, Arnstein & Lehr LLP, Miami, FL, Chad R. Hutchinson, Pro Hac Vice; Butler Snow LLP, Ridgeland, MS Kari L. Sutherland, Pro Hac Vice; Paul V. Cassisa, Jr. Pro Hac Vice; Butler Snow LLP, Oxford, MS, Michael Andrew Snowden, Pro Hac Vice; Butler Snow LLP, Shayna S. Cook, Pro Hac Vice; Goldman Ismail Tomaselli Brennan & Baum LLP, Chicago, IL, Nils Burton Snell, Pro Hac Vice; Butler Snow LLP, Fort Washington, PA, Philip J. Combs, Pro Hac Vice; Thomas Combs & Spann, PLLC, Charleston, WV, for Defendants.
James L. Ferraro, James Louis Ferraro, Jr., Daniel J. DiMatteo, Leslie Rothenberg, Mathew Daniel Gutierrez, The Ferraro Law Firm P.A., Miami, FL, Gabriel Santiago Saade, The Saade Law Firm, P.A., Coral Gables, FL, for Plaintiffs.
Andrew Russell Kruppa, Amanda Elizabeth Preston, Beatriz E. Jaramillo, Squire Patton Boggs (US) LLP, Andrea Cox, Arnstein & Lehr LLP, Miami, FL, Chad R. Hutchinson, Pro Hac Vice; Butler Snow LLP, Ridgeland, MS Kari L. Sutherland, Pro Hac Vice; Paul V. Cassisa, Jr. Pro Hac Vice; Butler Snow LLP, Oxford, MS, Michael Andrew Snowden, Pro Hac Vice; Butler Snow LLP, Shayna S. Cook, Pro Hac Vice; Goldman Ismail Tomaselli Brennan & Baum LLP, Chicago, IL, Nils Burton Snell, Pro Hac Vice; Butler Snow LLP, Fort Washington, PA, Philip J. Combs, Pro Hac Vice; Thomas Combs & Spann, PLLC, Charleston, WV, for Defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT (PUNITIVE DAMAGES)
URSULA UNGARO, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court upon the Motion for Summary Judgment (the "Motion") filed by Defendant Ethicon, Inc. ("Ethicon"). D.E. 92. The Court has reviewed the Motion and the pertinent portions of the record and is otherwise fully advised of the premises. On September 9, 2019, the Court entered its Order on the Motion with respect to the liability grounds and reserved ruling as to the Motion's punitive damages argument. D.E. 239.
The Motion was also filed by Johnson & Johnson, who since has been dismissed from this action. D.E. 245.
The Court assumes familiarity with the salient facts and therefore does not recite them herein. For the reasons set forth below, the Motion is DENIED with respect to punitive damages.
I. LEGAL STANDARD
Summary judgment is authorized only when the moving party meets its burden of demonstrating that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. When determining whether the moving party has met this burden, the Court must view the evidence and all factual inferences in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; Rojas v. Florida , 285 F.3d 1339, 1341-42 (11th Cir. 2002).
The party opposing the motion may not simply rest upon mere allegations or denials of the pleadings; after the moving party has met its burden of proving that no genuine issue of material fact exists, the non-moving party must make a showing sufficient to establish the existence of an essential element of that party's case and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Poole v. Country Club of Columbus, Inc. , 129 F.3d 551, 553 (11th Cir. 1997) ; Barfield v. Brierton , 883 F.2d 923, 933 (11th Cir. 1989).
If the record presents factual issues, the Court must not decide them; it must deny the motion and proceed to trial. Envntl. Def. Fund v. Marsh , 651 F.2d 983, 991 (5th Cir. 1981). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. Lighting Fixture & Elec. Supply Co. v. Cont'l Ins. Co. , 420 F.2d 1211, 1213 (5th Cir. 1969). If reasonable minds might differ on the inferences arising from undisputed facts, then the Court should deny summary judgment. Impossible Elec. Techs., Inc. v. Wackenhut Protective Sys., Inc. , 669 F.2d 1026, 1031 (5th Cir. 1982) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("[T]he dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").
Moreover, the party opposing a motion for summary judgment need not respond to it with evidence unless and until the movant has properly supported the motion with sufficient evidence. Adickes , 398 U.S. at 160, 90 S.Ct. 1598. The moving party must demonstrate that the facts underlying the relevant legal questions raised by the pleadings or are not otherwise in dispute, or else summary judgment will be denied notwithstanding that the non-moving party has introduced no evidence whatsoever. Brunswick Corp. v. Vineberg , 370 F.2d 605, 611-12 (5th Cir. 1967). The Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. Liberty Lobby, Inc. , 477 U.S. at 255, 106 S.Ct. 2505.
II. ANALYSIS
A. Choice of Law
Though the parties agree that Florida law governs Plaintiffs' substantive liability claims, they dispute which state law applies to Plaintiffs' punitive damages request. Compare Mot. at 3–4 with D.E. 163 at 2–3, 14–20.
"[B]ecause this case is before the Court on diversity jurisdiction, the Court utilizes Florida's conflict of law principles in determining which state's law applies." Chiles v. Novartis Pharm. Corp. , 923 F. Supp. 2d 1330, 1332 (M.D. Fla. 2013). The parties agree that the Court must apply Florida's "significant relationship test" as set forth in the Restatement (Second) of Conflict of Laws §§ 145 – 146 and adopted in Bishop v. Florida Specialty Paint Company , 389 So. 2d 999, 1001 (Fla. 1980). See Mot. at 3; D.E. 163 at 14; see also Judge v. Am. Motors Co. , 908 F.2d 1565, 1567–68 (11th Cir. 1990). The first prong of this test is to identify the sovereigns with interests in applying their laws to the present dispute. Judge , 908 F.2d at 1568 (citing Restatement (Second) § 145(2) ). Florida has an interest in applying its laws because Plaintiffs are Florida residents and Mrs. Salinero was implanted with the subject Artisyn Mesh in Florida. Cf. id. at 1569. However, Ethicon argues that New Jersey also has an interest in applying its laws because Ethicon is headquartered in New Jersey and its "corporate activities and decision-making as to the design, labeling, marketing, and distribution of Artisyn" took place in New Jersey. Mot. at 4; cf. Judge , 908 F.2d at 1569 & n.3.
"Once the interested sovereigns have been identified, the court must consider the threshold issue of whether there is a ‘true conflict’ among the jurisdictions with an interest in a particular issue or merely a ‘false conflict.’ " Pycsa Panama, S.A. v. Tensar Earth Techs., Inc. , 625 F. Supp. 2d 1198, 1218 (S.D. Fla. 2008) (citing Tune v. Philip Morris, Inc. , 766 So. 2d 350, 352 (Fla. 2d DCA 2000) ). "A ‘false conflict’ exists where the laws of the interested jurisdictions are: (1) the same; (2) different but would produce the same outcome under the facts of the case; or, (3) when the policies of one jurisdiction would be furthered by the application of its laws while the policies of the other jurisdiction would not be advanced by the application of its laws." Id. at 1218–19 (citing Tune , 766 So. 2d at 352 ). By contrast, a "true conflict" exists where "two or more states have a legitimate interest in a particular set of facts in litigation and the laws of those states differ or would produce a different result." Id. at 1219 (quotations omitted). If only a "false conflict" is presented, the law of the forum governs. See id. (citing Cavic v. Grand Bahama Dev. Co. , 701 F.2d 879, 882 (11th Cir. 1983) ). Here, New Jersey law and Florida law provide a true conflict as to the applicable punitive damages caps. Compare N.J.S.A. 2A:15-5.14 with Fla. Stat. § 768.73(1)(a)–(c).
Next, the Court must determine which sovereign's interest is the most "significant." Judge , 908 F.2d at 1569. "To discharge this task, we cannot simply add up the factors delineated in section 145(2) and then apply the law of the sovereign with the greatest numerical total." Id. "Rather, we must, as mandated by section 145(1), turn to the factors delineated in section 6 to determine which sovereign has the most significant contact." Id.
Though the state where the injury occurred generally has significant interests, see Restatement (Second) of Conflict of Laws § 146, "an important factor in determining which is the state of most significant relationship is the purpose sought to be achieved by the rule of tort law involved. If this purpose is to punish the tortfeasor and thus to deter others from following his example, there is better reason to say that the state where the conduct occurred is the state of dominant interest and that its local law should control than if the tort rule is designed primarily to compensate the victim for his injuries." Id. cmt. e.
Because punitive damages are meant to deter or punish misconduct, the state where the allegedly defective product was designed and manufactured—that is, New Jersey—has a superior interest here. See, e.g. , Dopson-Troutt v. Novartis Pharms. Corp. , No. 8:06-CV-1708-T-24-EAJ, 2013 WL 3808205 at *4 (M.D. Fla. July 22, 2013) ; Krause v. Novartis Pharms. Corps. , 926 F. Supp. 2d 1306, 1310–12 (N.D. Fla. 2013) ; see also Bellew v. Ethicon, Inc. , No. 2:13-cv-22473, 2014 WL 6674433, at *2 (S.D. W. Va. Nov. 24, 2014) (applying Arizona conflicts-of-law principles, which are also based on the Restatement, and concluding that New Jersey law applies to punitive damages claims); Lewis v. Ethicon, Inc. (In re Ethicon, Inc., Pelvic Repair Sys. Prods. Liab. Litig.) , MDL No. 2327, Nos. 2:12-MD-02327, 2:12-cv-4301, 2014 WL 186869, at *9–10 (S.D. W. Va. Jan. 15, 2014) (applying Texas conflicts-of-law principles, which are also based on the Restatement, and concluding that New Jersey law applies to punitive damages claims), rev'd in part on other grounds , 2014 WL 457551 (S.D. W. Va. Feb. 3, 2014).
Accordingly, the Court holds that New Jersey law applies to Plaintiffs' punitive damages claims.
B. Application
The primary dispute here is whether the New Jersey Products Liability Act ("NJPLA") immunizes Ethicon from Plaintiffs' punitive damages claim. The relevant provision of the NJPLA reads, in pertinent part:
Punitive damages shall not be awarded if a drug or device ... which caused the claimant's harm was subject to premarket approval or licensure by the federal Food and Drug Administration under the "Federal Food, Drug, and Cosmetic Act," 52 Stat. 1040, 21 U.S.C. § 301 et seq. or the "Public Health Service Act," 58 Stat. 682, 42 U.S.C. § 201 et seq. and was approved or licensed; or is generally recognized as safe and effective pursuant to conditions established by the federal Food and Drug Administration and applicable regulations, including packaging and labeling regulations.
N.J.S.A. 2A:58C-5(c). Ethicon argues that Artisyn Mesh's clearance through the 510(k) process renders it immune from punitive damages under the statute. See Mot. at 15–20. Plaintiffs argue that neither of the statute's two conditions apply to Ethicon's Artisyn Mesh product, and thus Ethicon is not immune from punitive damages.
Plaintiffs advance this argument to claim that there is no "true conflict" between Florida and New Jersey law. See D.E. 163 at 15–20. The Court has already found that Florida and New Jersey punitive damages laws present at least one true conflict. Nevertheless, the Court finds Plaintiffs' argument to be fairly made as to the application of New Jersey law (having concluded that New Jersey law should apply).
The Court agrees with Plaintiffs. Artisyn Mesh was neither "licensed" nor subject to premarket approval. And as this Court has already held, the 510(k) process is not a safety and efficacy review; rather, it is based on equivalence to predicate devices. See D.E. 248 at 2–10. Manufacturers of devices cleared under the 510(k) process are not immune from punitive damages awards under the NJPLA's punitive damages statute. See, e.g. , Engleman v. Ethicon, Inc. , ––– A.3d ––––, ––––, 2019 WL 4556909, at *11–12 (Pa. Super. Ct. Sept. 20, 2019); Bellew v. Ethicon, Inc. , No. 2:13-cv-22473, 2014 WL 6674433, at *3–4 (S.D. W. Va. Nov. 24, 2014) ; Huskey v. Ethicon, Inc. , 29 F. Supp. 3d 736, 745–46 (S.D. W. Va. 2014) ; Lewis v. Ethicon, Inc. (In re Ethicon, Inc., Pelvic Repair Sys. Prods. Liab. Litig.), MDL No. 2327, Nos. 2:12-MD-02327, 2:12-cv-4301, 2014 WL 186869, at *9–10 (S.D. W. Va. Jan. 15, 2014), rev'd in part on other grounds, 2014 WL 457551 (S.D. W. Va. Feb. 3, 2014). The Court adopts the reasoning of these decisions and concludes that the NJPLA does not bar Plaintiffs' punitive damages claims.
Though Ethicon cites to Black's Law Dictionary and cases analyzing "approval" or "license" in other contexts, see Mot. at 19–20, Ethicon's reliance on these sources is unpersuasive. The applicable New Jersey statute speaks specifically of premarket approval under the Federal Food, Drug, and Cosmetic Act, not some abstract concept of "approval." See N.J.S.A. 2A:58C-5(c). So too with the term "licensure"; nothing in the Federal Food, Drug, and Cosmetic Act discusses 510(k) clearance in terms of a "license." Ethicon's overly-general and generous interpretation of "approval" or "license" would render the statutory clause "under the ‘Federal Food, Drug, and Cosmetic Act,’ 52 Stat. 1040, 21 U.S.C. § 301 et seq. or the ‘Public Health Service Act,’ 58 Stat. 682, 42 U.S.C. § 201 et seq." a nullity—an impermissible result. See United States v. Menasche , 348 U.S. 528, 538–39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) ("It is our duty to give effect, if possible, to every clause and word of a statute...." (internal quotations omitted)); see also Huskey v. Ethicon, Inc. , 29 F. Supp. 3d 736, 746 (S.D. W. Va. 2014) (noting that "the FDA has not ‘approved or licensed’ or ‘generally recognized’ " a transvaginal pelvic mesh device "as ‘safe and effective.’ "). To the extent Ethicon relies on Seavey v. Globus Medical, Inc. , No. 11-2240 (RBK/JS), 2014 WL 1876957 (D.N.J. Mar. 11, 2014) —a case applying the New Jersey Products Liability Act's labelling statute to a device cleared under 510(k)—the plaintiff in that case did not dispute that the FDA "approved" the warning label, id. at *7. Plaintiffs here do dispute that the FDA "approved" Artisyn Mesh.
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Accordingly, it is hereby
ORDERED AND ADJUDGED that Ethicon's Motion, D.E. 92, is DENIED as to the punitive damages claim.
DONE AND ORDERED in Chambers at Miami, Florida, this _24th_ day of October, 2019.