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Carlson v. Boston Scientific Corporation

United States Court of Appeals, Fourth Circuit

May 9, 2017

MARTHA CARLSON, Plaintiff - Appellant,
v.
BOSTON SCIENTIFIC CORPORATION, Defendant-Appellee. and ROMONA WINEBARGER; REX WINEBARGER, Plaintiffs,

          Argued: March 24, 2017

         Appeal 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; 3:15-cv-00211-RLV-DCK)

         ARGUED:

          William Louis Hurlock, MUELLER LAW, PLLC, Montclair, New Jersey, for Appellant.

          Daniel Brandon Rogers, SHOOK, HARDY & BACON L.L.P., Miami, Florida, for Appellee.

         ON BRIEF:

          Andres C. Pereira, Rachael K. Jones, David Martin, MUELLER LAW, PLLC, Austin, Texas, for Appellant.

          Leslie C. Packer, ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellee.

          Before DUNCAN, KEENAN, and THACKER, Circuit Judges.

          OPINION

          THACKER, Circuit Judge

         After 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.

         I.

         This 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.[1] 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.

         Appellee 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.[2] 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 ...


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