United States District Court, W.D. Pennsylvania
WILLIAM S. STICKMAN IV, UNITED STATES DISTRICT JUDGE.
filed this products liability action in the Court of Common
Pleas of Allegheny County, Pennsylvania, on June 25, 2018,
and it was timely removed to this Court on July 18, 2018 (ECF
No. 1). According to Plaintiff, Defendants Johnson &
Johnson, Ethicon, Inc., and Boston Scientific Corporation
manufactured an unspecified "mesh" that injured
her. See Plaintiffs Complaint ("Pl.'s
Compl.") (ECF No. 1, Exhibit 3). Defendants have moved
for summary judgment arguing that Plaintiff failed to proffer
evidence establishing the name of the product or the
manufacturer of the product. For the reasons set forth below,
Defendants' motions for summary judgment (ECF Nos. 78 and
80) are GRANTED.
alleges she was injured by an unspecified "mesh"
"designed, manufactured, marketed, packaged, labelled,
sold and placed in the stream of commerce" by
Defendants. See Pl.'s Compl. ¶¶
6-8. In her Complaint, Plaintiff did not specifically
identify which product caused her injury. In fact, she did
not mention a single product by name in her Complaint.
See generally Pl.'s Compl. Pursuant to the June
27, 2019, Case Management Order of the Honorable Peter J.
Phipps (ECF No. 57), discovery was permitted related to the
identification of the product that allegedly caused injury to
Plaintiff. Discovery was to conclude on September 6, 2019,
and the parties were directed to submit a joint status report
regarding product identification on September 13, 2019. This
case was reassigned to the undersigned on August 23, 2019
(ECF No. 65).
discovery, Plaintiff did not identify the product at issue.
The only information she disclosed to Defendants was,
"[m]esh was implanted at Magee Women's Hospital
during a hysterectomy procedure." However, review of the
medical records from the 1997 hysterectomy procedure that she
identified reveal that Plaintiff was not implanted with mesh.
Plaintiff produced no evidence about what type of product was
allegedly implanted in her and she failed to ascertain if it
was a product from any of the Defendants. See
Ethicon's Memorandum in Support of Summary Judgment (ECF
No. 79), ¶¶ 8-11; see also Boston
Scientific's Memorandum in Support of Summary Judgment
(ECF No. 81), pp. 2-3, ¶¶ 4-11. Despite multiple
invitations from Defendants, Plaintiff did not offer a
statement for the joint status report to the Court regarding
product identification filed by Defendants on September 13,
2019 (ECF No. 77). Plaintiff has also chosen not to file a
response to Defendants motions for summary
judgment is warranted if the Court is satisfied that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c); see also Celotex Corp. v.
Cattrett, 477 U.S. 317, 322 (1986). A fact is material
if it must be decided in order to resolve the substantive
claim or defense to which the motion is directed. In other
words, there is a genuine dispute of material fact "if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
must view the evidence presented in the light most favorable
to the nonmoving party. Id. at 255. It refrains from
making credibility determinations or weighing evidence.
Id. "Real questions about credibility, gaps in
the evidence, and doubts as to the sufficiency of the
movant's proof," will defeat a motion for summary
judgment. El v. Se Pa. Transp. Auth, 479 F.3d 232,
238 (3d Cir. 2007).
Pennsylvania law, a products liability cause of action does
not exist if Plaintiff cannot identify the product and
manufacturer of the product that caused her alleged injury.
See Lilley v. Johns-Manville Corp., 596 A.2d 203,
207 (Pa.Super. 1991), appeal denied, 607 A.2d 254
(Pa. 1992); see also Eckenrodv. GAP Corporation, 544
A.2d 50 (Pa.Super. 1988), appeal denied, 553 A.2d
963 (Pa. 1988). Plaintiff has the burden of demonstrating
that Ethicon or Boston Scientific is responsible for the harm
alleged. See Berkebile v. Brantley Helicopter Corp.,
337 A.2d 893 (Pa. 1975), abrogated on other grounds. See
also Warnick v. NMC-Wollard, Inc., 512 F.Supp.2d 318,
330 (W.D. Pa. 2007) (A "plaintiff [under Pennsylvania
law] must establish that the injuries sustained were caused
by the product of a particular manufacturer or
supplier." (citation omitted)); Robertson v. Allied
Signal, Inc., 914 F.2d 360, 366 (3d Cir. 1990) (same).
has failed to provide evidence that Ethicon or Boston
Scientific are the manufacturers of the product that
allegedly caused her harm. She has also failed to identify
the specific brand of mesh at issue. While the Court is
sympathetic to Plaintiffs condition, she has not met her
burden to maintain a medical device products liability action
under Pennsylvania law. Even after an opportunity for full
discovery on product identification, her claims remain
nothing more than unsupported allegations. There is no
genuine dispute of material fact and no reasonable jury could
find in favor of Plaintiff. See N.A.A. C.P. v. North
Hudson Reg'l Fire & Rescue, 665 F.3d 464, 475
(3d Cir. 2011) ("[w]here the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial."
(citation omitted)). Accordingly, the Court dismisses
Plaintiffs claims with prejudice.
NOW, this 29th day of October 2019, IT IS HEREBY
ORDERED that Defendants' motions for summary judgment
(ECF Nos. 78 and 80) are GRANTED. All of Plaintiff s claims
are dismissed with prejudice.