Argued: March 24, 2017
from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:15-cv-00057-RLV-DCK;
William Louis Hurlock, MUELLER LAW, PLLC, Montclair, New
Jersey, for Appellant.
Brandon Rogers, SHOOK, HARDY & BACON L.L.P., Miami,
Florida, for Appellee.
C. Pereira, Rachael K. Jones, David Martin, MUELLER LAW,
PLLC, Austin, Texas, for Appellant.
C. Packer, ELLIS & WINTERS LLP, Raleigh, North Carolina,
DUNCAN, KEENAN, and THACKER, Circuit Judges.
THACKER, Circuit Judge
her doctor prescribed and implanted a transvaginal mesh
product that Boston Scientific Corporation
("Appellee") manufactured, Martha Carlson
("Appellant") sued the company, alleging that the
mesh injured her and that Appellee failed to warn of risks
associated with the mesh. After joining a Multidistrict
Litigation ("MDL") with respect to alleged risks
involving transvaginal mesh products, Appellant lost her
failure to warn claim at summary judgment because, per the
MDL court, Appellant did not present evidence that any
allegedly inadequate warnings caused her injuries. After the
case was transferred to a district court for trial on the
remaining claims, Appellant moved the district court to
reconsider the summary judgment award based on evidence
Appellant failed to cite during summary judgment briefing in
the MDL court. The district court denied the motion. And,
after losing at trial, Appellant timely appealed. Because we
conclude that neither the summary judgment award nor the
denial of Appellant's motion for reconsideration was
erroneous, we affirm.
case is one of the tens of thousands of cases that have
proceeded through an MDL concerning transvaginal surgical
mesh as treatment for pelvic organ prolapse and stress
urinary incontinence. Appellant alleges
that on July 16, 2010, Doctor Michael Kennelly prescribed and
implanted in Appellant one of these mesh devices: the Uphold
Vaginal Support System that Appellee manufactured. As a
result, Appellant alleges the mesh caused injuries including
pain, recurrent pelvic organ prolapse, bladder prolapse,
incontinence, and urinary and bowel problems. Appellant
brought a host of claims against Appellee, including failure
to warn of the dangers associated with the mesh, which is the
only claim at issue in this appeal.
moved for summary judgment in the MDL court. In opposition,
Appellant submitted excerpts from Dr. Kennelly's
deposition testimony purporting to show that any warnings
Appellee provided were inadequate. Appellant also submitted
her own affidavit stating that if she had known that the mesh
"could result in life changing conditions, [she] would
not have agreed to the procedure." J.A.
263. The MDL court dismissed the
failure to warn claim, reasoning that because Appellant did
not present evidence that Dr. Kennelly read or relied on the
Directions for Use ("DFU") accompanying the mesh,
which contained the allegedly inadequate warnings, Appellant
could not prove that any alterations to those warnings could
have impacted Dr. Kennelly's course of treatment. The MDL
court thus concluded that Appellant failed to create a
triable issue of fact as to ...