ELLERBEE

v.

ETHICON, INC.

“DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT”

This matter is before the Court on “Defendants’ Motion for Summary Judgment” and supporting memorandum, filed on October 29, 2019. (Docs. 37; 38). Plaintiffs responded in opposition on November 15, 2019. (Doc. 47). Defendants filed a reply on November 21, 2019. (Doc. 49). Upon review of the motion, response, reply, court file, and record, the Court finds as follows: Background This case is one of thousands of similar cases filed since 2010.1 Plaintiffs Ovis Ellerbee and James Ellerbee sued directly in the Southern District of West

Negligent Misrepresentation (Count IX), Negligent Infliction of Emotional Distress (Count X), Breach of Express Warranty (Count XI), Breach of Implied Warranty (Count XII), Violation of Consumer Protection Laws (Count XIII), Gross Negligence

MDL 2387 (Coloplast) Member List of Cases, https://www.wvsd.uscourts.gov/caselist/caseviewlist.aspx?mdl=2387; MDL 2440 (Cook Medical) Member List of Cases, https://www.wvsd.uscourts.gov/caselist/caseviewlist.aspx?mdl=2440; and MDL 2511 (Neomedic) Member List of Cases, https://www.wvsd.uscourts.gov/caselist/caseviewlist.aspx?mdl=2511. (Count XIV), Unjust Enrichment (Count XV), Loss of Consortium (Count XVI), Punitive Damages (Count XVII), and Discovery Rule and Tolling (Count XVIII). Legal Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A properly supported motion for summary judgment is only defeated by the existence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party bears the initial burden of showing that there are no genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F. 3d 1256, 1260 (11th Cir. 2004). When the moving party has discharged its burden, the nonmoving party must then designate specific facts showing the existence of genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F. 3d 590, 593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or evidence, the nonmoving party’s evidence is presumed to be true and all reasonable inferences must be drawn in the nonmoving party’s favor. Shotz v. City of

Plantation, 344 F. 3d 1161, 1164 (11th Cir. 2003). Analysis Statute of Limitations Defendants seek summary judgment on all claims, arguing that the entire action is barred by the statute of limitations.² Under Florida law, the statute of

Defendants seek summary judgment on Count I to the extent the claim is based on an alleged manufacturing defect. Plaintiffs indicate that they do not intend to pursue any claims based on a manufacturing defect. Based on Plaintiffs’ concession and the applicable case law, Defendants are entitled to summary judgment on this portion of Count I. Failure to Warn Defendants also seek summary judgment on Count I to the extent that the claim is based on an alleged failure to warn. Defendants argue that Plaintiffs cannot establish proximate causation under the learned intermediary doctrine because Ms. Ellerbee’s implanting physician would not have changed his decision if given additional warnings or risk information. Plaintiffs argue that there is a genuine issue of material fact as to the physician’s familiarity with and reliance on the warnings and whether Ms. Ellerbee’s physician would have used the product had there been an adequate warning. The learned intermediary doctrine is a fact-intensive affirmative defense that

“directs the manufacturer’s duty to warn to the prescribing physician rather than the ultimate consumer or patient.” Eghnayem v. Boston Scientific Corp., No. 1:14- cv-024061, 2016 WL 4051311, at *9 (S.D. Fla. Mar. 17, 2016); MacMorris v. Wyeth, Inc., No. 2:04-cv-596-FtM-29DNF, 2005 WL 1528626, at *3 (M.D. Fla. June 27, 2005); see, e.g., Salinero v. Johnson & Johnson, 400 F. Supp. 3d 1334, 1344-45 (S.D. Fla. 2019). To establish proximate causation, “a plaintiff must show that her treating physician would not have used the product had adequate warnings been provided.” Id. (citing Hoffmann-La Roche Inc. v. Mason, 27 So. 3d 75, 76 (Fla. 1st DCA 2009)). The causal link is therefore broken when the prescribing physician had substantially the same knowledge as an adequate warning from the manufacturer would have given. Christopher v. Cutter Labs., 53 F. 3d 1184, 1192 (11th Cir. 1995). The Court has reviewed the deposition of Dr. Pardon. See (Doc. 37-2). Dr. Pardon explains that he was aware of much of the information contained in the warning, but he did not specifically testify that he possessed the same knowledge that an adequate warning would have provided. (Id. at 65-73). Dr. Pardon also identified several alleged deficiencies in the warnings. (Id.). Construing these facts in light most favorable to Plaintiffs, as it is required to do at this stage of the proceedings, the Court finds that there are genuine issues of material fact as to proximate causation and the applicability of the learned intermediary doctrine in this case. See, e.g., Resendez v. C. R. Bard, Inc., No. 5:19-cv-299-BO, 2020 WL 1916690, at *1 (E.D.N.C. Apr. 20, 2020) (holding that plaintiff’s negligent failure to warn claim was not barred by the learned intermediary doctrine); Wortman v. C. R. Bard, Inc., No. 1:19-cv-3273-JMS-DLP, 2019 WL 6329651, at *8-9 (S.D. Ind. Nov. 26, 2019) (concluding that the learned intermediary doctrine did not preclude failure to warn claim). As such, Defendants are not entitled to summary judgment on this portion of Count I. Count II: Strict Liability – Manufacturing Defect

In their motion, Defendants move for summary judgment on Plaintiffs’ manufacturing defect claim. Plaintiffs indicate that they will not pursue Count II. Consequently, Defendants are entitled to summary judgment on Count II. Count III: Strict Liability -- Failure to Warn Defendants seek summary judgment on Plaintiffs’ strict liability failure to warn claim. For the reasons discussed in the Court’s analysis of Count I, there is an issue of fact as to the applicability of the learned intermediary doctrine. As such,

the motion for summary judgment is denied as to Count III. Count IV: Strict Liability – Defective Product In their motion, Defendants move for summary judgment on Plaintiffs’ claim. Plaintiffs indicate that they will not pursue Count IV. Consequently, the Court finds that Defendants are entitled to summary judgment on Count IV. Count V: Strict Liability -- Design Defect Defendants seek summary judgment on Plaintiffs’ design defect claim, arguing that if the Court grants their Daubert motion, Plaintiffs will be unable to establish a design defect without expert testimony. However, the Court ruled on the Daubert motion and held that Dr. Hoyte’s case-specific opinions are admissible. (Doc. 83). Consequently, because there is an issue of material fact regarding causation, the motion for summary judgment is due be denied as to Count V. Count VI: Common Law Fraud Defendants seek summary judgment as to Plaintiffs’ common law fraud claim. Specifically, Defendants argue that the claim is barred because Plaintiffs cannot establish causation under the learned intermediary doctrine. For the reasons discussed in the Court’s analysis of Count I, there is an issue of fact as to the applicability of the learned intermediary doctrine. Count VII: Fraudulent Concealment Defendants move for summary judgment on Plaintiffs’ fraudulent concealment claim. Plaintiffs indicate that they do not intend to proceed with this claim. As such, the motion for summary judgment is granted as to Count VII. Count VIII: Constructive Fraud Defendants seek summary judgment on Plaintiffs’ constructive fraud claim. Plaintiffs indicate that they do not intend to proceed with this claim. As such, the motion for summary judgment is granted as to Count VIII. Count IX: Negligent Misrepresentation Defendants seek summary judgment as to Plaintiffs’ common law fraud claim. Specifically, Defendants argue that the claim is barred because Plaintiffs cannot establish causation under the learned intermediary doctrine. For the reasons discussed in the Court’s analysis of Count I, there is an issue of fact as to the applicability of the learned intermediary doctrine. Consequently, the motion for summary judgment is denied as to Count IX. Count X: Negligent Infliction of Emotional Distress Defendants move for summary judgment on Plaintiffs’ negligent infliction of emotional distress claim. Plaintiffs indicate that they do not intend to proceed with this claim. As such, the motion for summary judgment is granted as to Count X. Counts XI and XII: Breach of Express Warranty and Breach of Implied Warranty

Defendants seek summary judgment on Plaintiffs’ breach of express and implied warranty claims. Plaintiffs indicate that they do not intend to proceed with these claims. Consequently, the motion for summary judgment is granted as to Counts XI and XII. Count XIII: Violation of Consumer Protection Laws In their motion, Defendants seek summary judgment on Plaintiffs’ violation of consumer protection laws claim. Defendants contend that Plaintiffs cannot establish causation under the learned intermediary doctrine. The Court disagrees with Defendants’ argument as to the learned intermediary doctrine for the reasons discussed in its analysis of Count I. However, the Court finds that Defendants are entitled to summary judgment on this claim for other reasons. First, the Florida Deceptive and Unfair Trade Practices Act (“FDUPTA”) does not apply to claims for personal injury or death, including those brought in the products liability context. § 501.212(3), F.S.; see, e.g., Douse v. Boston Sci. Corp., 314 F. Supp. 3d 1251, 1264 (M.D. Fla. 2018). Second, even if such a claim could be brought under FDUTPA, Defendants’ statute of limitations argument succeeds under FDUTPA. A FDUTPA claim must be brought within “4 years after the occurrence of a violation of this part or more than² years after the last payment in a transaction involved in a violation of this part, whichever is later.” § 501.207(5), F.S. Further, “[t]he doctrine of delayed discovery, under which the statute of limitations begins to run when ‘the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence,’ does not apply to claims under FDUTPA.” Fisher v. Harley-Davison Motor Grp., LLC,²:19-cv-14154, 2019 WL 8014364, at *3 (S.D. Fla. Oct. 18, 2019) (quoting Martin v. World Wide Child Care Corp., No. 17-cv-

80188, 2017 WL 9618895, at *4 (S.D. Fla. Dec.¹, 2017)). Instead, under FDUTPA, the limitations period begins to run when the product is purchased. See Koski v. Carrier Corp., 347 F. Supp. 3d 1185, 1192 (S.D. Fla. 2017).3 Therefore, the

Count XIV: Gross Negligence Manufacturing Defect Defendants seek summary judgment on Count XIV to the extent it relies on allegations of a manufacturing defect. Plaintiffs indicate that they do not intend to pursue any claims based on a manufacturing defect. Based on Plaintiffs’ concession and the applicable case law, the Court grants summary judgment on this portion of

Count XIV. Failure to Warn Defendants additionally seek summary judgment on Count XIV to the extent that it relies on Plaintiffs’ failure to warn claims. For the reasons discussed in the Court’s analysis of Count I, there is an issue of fact as to the applicability of the learned intermediary doctrine. As such, the Court denies summary judgment as to this portion of Count XIV.

Count XV: Unjust Enrichment Defendants move for summary judgment on Plaintiffs’ unjust enrichment claim. Plaintiffs indicate that they do not intend to proceed with this claim. As such, the motion for summary judgment is granted as to Count XV. Count XVI: Loss of Consortium Defendants seek summary judgment on Plaintiffs’ loss of consortium claim. Plaintiffs indicate that they do not intend to proceed with this claim. As such, the motion for summary judgment is granted as to Count XVI. Accordingly, it is ORDERED, ADJUDGED, and DECREED: 1. “Defendants’ Motion for Summary Judgment” (Doc. 37) is GRANTED IN PART and DENIED IN PART. 2. The motion is GRANTED to the extent that summary judgment shall be entered in favor of Defendant, and against Plaintiffs, on Count I (in part), Count II, Count IV, Count VII, Count VIII, Count X, Count XI, Count XII, Count XIII, Count XIV (in part), Count XV, and Count XVI. The Court will enter a final judgment once all claims have been resolved.

3. The motion is DENIED in all other respects.

DONE and ORDERED in Chambers, in Tampa, Florida, this 2nd day of September, 2020.

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UNITED STATES DISTRICT JUDGE