Morrow v. Ethicon Inc

• Court: District Court, W.D. Washington
• Decided: October 14, 2020
• Docket: 3:20-cv-05062
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 CRYSTAL MORROW, THOMAS CASE NO. C20-5062 BHS 8 MORROW, ORDER RESERVING RULING, 9 Plaintiffs, RENOTING DEFENDANTS’ v. MOTION FOR SUMMARY 10 JUDGMENT, AND GRANTING ETHICON, INC., JOHNSON & PLAINTIFFS LEAVE TO FILE 11 JOHNSON, STATEMENT OF MATERIAL FACTS 12 Defendants. 13

This matter comes before the Court on Defendants Ethicon, Inc. and Johnson & 14 Johnson’s (collectively “Ethicon”) motion for summary judgment. Dkt. 62. The Court has 15 considered the pleadings filed in support of and in opposition to the motion and the 16 remainder of the file and hereby reserves ruling on the motion and grants Plaintiffs leave 17 to file a statement of material facts as to the loss of consortium claim for the reasons 18 stated herein. 19 Plaintiffs Crystal and Thomas Morrow (“Plaintiffs”) bring claims against Ethicon 20 arising out of Plaintiff Crystal Morrow’s (“Mrs. Morrow”) surgical implantation of 21 TVT—a transvaginal mesh sling. Dkt. 1; Dkt. 64-1, Plaintiff Fact Sheet, at 2. Plaintiffs 22 1 bring a claim, inter alia, for Plaintiff Thomas Morrow’s (“Mr. Morrow”) loss of 2 consortium. Dkt.1; see also Dkt. 53.

3 Loss of consortium is typically thought of as a “loss of society, affection, 4 assistance and conjugal fellowship, and . . . loss or impairment of sexual relations” in the 5 marital relationship. Ueland v. Pengo Hydra-Pull Corp., 103 Wn.2d 131, 132 n.1 (1984) 6 (citing Black’s Law Dictionary 280 (5th ed. 1979)). In Washington, a loss of consortium 7 claim is a separate and independent claim rather than a derivative claim. Green v. A.P.C. 8 (Am. Pharm. Co.), 136 Wn.2d 87, 101 (1998). A loss of consortium claim accrues when

9 the spouse first experiences injury due to loss of consortium. Reichelt v. Johns-Manville 10 Corp., 107 Wn.2d 761, 776 (1987). 11 Ethicon argues that the loss of consortium claim is time-barred because Mrs. 12 Morrow testified that her painful intercourse began in approximately 2002. Dkt. 62 at 6– 13 7. Plaintiffs’ only response to Ethicon’s argument is that the loss of consortium claim is

14 derivative of the Plaintiffs’ design defect claim and therefore timely. Dkt. 64 at 12. 15 Ethicon correctly states that Mr. Morrow’s loss of consortium claim is a substantive 16 rather than derivative claim. Dkt. 62 at 6. Moreover, Plaintiffs do not provide Mr. 17 Morrow’s declaration or any specific facts showing the existence of a genuine issue for 18 trial regarding when the loss of consortium claim accrued.

19 In the absence of specific facts from the opposition, a court may grant summary 20 judgment if the motion and supporting materials show that the movant is entitled to it. 21 Fed. R. Civ. P. 56(e)(3); see also Nilsson, Robbins, Dalgarn, Berliner, Carson & Wusrt v. 22 Louisiana Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988). But Rule 56(e) also allows for 1 a court to give the party “an opportunity to properly support or address the fact.” Fed. R. 2 Civ. P. 56(e)(1). The 2010 Advisory Committee Notes to Rule 56(e) indicate that

3 generally courts should afford a party an opportunity to properly support their facts and 4 address their opponent’s facts: 5 Subdivision (e) addresses questions that arise when a party fails to support an assertion of fact or fails to properly address another party’s assertion of 6 fact as required by Rule 56(c). As explained below, summary judgment cannot be granted by default even if there is a complete failure to respond 7 to the motion, much less when an attempted response fails to comply with Rule 56(c) requirements. Nor should it be denied by default even if the 8 movant completely fails to reply to a nonmovant’s response. Before deciding on other possible action, subdivision (e)(1) recognizes that the 9 court may afford an opportunity to properly support or address the fact. In many circumstances this opportunity will be the court’s preferred first step. 10 Fed. R. Civ. P. 56(e), 2010 Amendment, Advisory Committee Notes. 11 The Court could, pursuant to Rule 56(e)(2) or (3), deem that the facts about Mr. 12 Morrow’s loss of consortium claim are undisputed and grant summary judgment in favor 13 of Ethicon if, considering the undisputed facts, Ethicon is entitled to it. See Liebling v. 14 Novartis Pharma. Corp., No. CV 11-10263 MMM (MRWx), 2014 WL 12584383, at *3 15 (C.D. Cal. March 6, 2014) (providing a collection of cases in which the courts granted 16 summary judgment because of a failure to address undisputed facts). Yet when Mr. 17 Morrow himself first experienced injury due to the loss of consortium is absent from the 18 provided record, and Plaintiffs have failed to properly address Ethicon’s assertion that his 19 injuries began in 2002. See Dkt. 62 at 6–7. 20 As accrual and the discovery rule are very fact-intensive, the Court does not wish 21 to rule on the loss of consortium claim without a complete record. Pursuant to Rule 22 1 56(e)(1), the Court grants Plaintiffs leave to file “Plaintiffs’ Statement of Material Facts” 2 and any supporting evidence only as to the loss of consortium claim. See Long v. Hartwig

3 Transit, Inc., No. 1:11–cv–724–HJW, 2014 WL 127086, *5 (S.D. Ohio Jan. 13, 2014) 4 (“Given the lack of clarity regarding the factual basis for this claim, the Court will not 5 grant summary judgment at this time, and instead, will order plaintiff forthwith to file 6 evidence, if any exists, that any further premiums were actually deducted,” citing 7 Fed.R.Evid. 56(e)(1)); General Elec. Capital Corp. v. FPL Serv. Corp., 986 F. Supp. 2d 8 1029, 1041 (N.D. Iowa 2013) (“But, because GECC offers no admissible evidence that it

9 resold the copiers in a commercially reasonable manner, I cannot grant summary 10 judgment in favor of GECC on the issue of damages . . . . Still, with a little more 11 evidence, it may be possible to resolve GECC’s damages on summary judgment. Rule 12 56(e)(1) provides that, ‘[i]f a party fails to properly support an assertion of fact or fails to 13 properly address another party’s assertion of fact as required by Rule 56(c), the court may

14 . . . give an opportunity to properly support or address the fact.’ Thus, I will allow both 15 parties 30 days from the date of this order to present additional declarations or other 16 admissible evidence solely on the question of whether GECC resold the copiers in a 17 commercially reasonable manner”). 18 Therefore, it is hereby ORDERED that the Court reserves ruling on Ethicon’s

19 motion for summary judgment, Dkt. 62, and GRANTS Plaintiffs leave to file “Plaintiffs’ 20 Statement of Material Facts” and any supporting evidence only as to the loss of 21 consortium claim no later than October 21, 2020. Ethicon may file a supplemental reply 22 1 no later than October 28, 2020. The Clerk shall renote Ethicon’s motion for summary 2 judgment, Dkt. 62, for the Court’s October 28, 2020 calendar.

3 Dated this 14th day of October, 2020. A 4 5 BENJAMIN H. SETTLE 6 United States District Judge

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