Products Liability Law Reporter

A federal district court held that a plaintiff could properly assert various concurrent claims, including strict liability and negligence, against the manufacturers of her injury-causing pelvic mesh products.

Theresa Buoniello suffered from pelvic floor prolapse and underwent surgical implantation of the Gynecare TVT-Obturator and the Prisma Anterior Pelvic Floor Repair System. She later required corrective surgery and allegedly suffers from continued pain and mental anguish as a result of the pelvic mesh surgery. She sued Ethicon Women’s Health and Urology; Gynecare; Ethicon, Inc.; and Johnson & Johnson, alleging strict liability, negligence, fraud, negligent misrepresentation, unjust enrichment, negligent infliction of emotional distress, and other claims. The defense moved to dismiss, arguing that the plaintiff’s claims were duplicative.

Granting in part and denying in part, the court found that in New York, it is well established that a plaintiff in a damages action arising out of a defective product may sue under one or more of four theories: negligence, breach of express warranty, breach of implied warranty, or strict liability. The court found that the defense has offered no case law holding that a plaintiff may not bring concurrent claims for negligence and strict liability. Additionally, the court found that New York law does not preclude the plaintiff’s fraud claims in light of the defendant’s argument that the learned intermediary doctrine applied here. The court said that the plaintiff disputes that the doctrine actually applies to her claims based on her assertion that the defendant failed to adequately warn her health care providers.

Nevertheless, the court held that the plaintiff’s unjust enrichment claims were duplicative and required dismissal, reasoning that the plaintiff’s other common law tort claims and lack of argument on the sufficiency of the unjust enrichment claim justified its conclusion. Similarly, the court dismissed the plaintiff’s emotional distress claim based on her failure to provide any argument as to why this claim is distinct from her other claims.

Citation: Buoniello v. Ethicon Women’s Health & Urology, 2020 WL 5802276 (E.D.N.Y. Sept. 29, 2020).

Plaintiff counsel: Laura J. Baughman, Dallas.