Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kelly v. C. R. Bard Inc.

United States District Court, W.D. Texas, Austin Division

December 9, 2019

SALLIE KELLY, Plaintiff
v.
C. R. BARD, INC., Defendant

          THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE

         Before this Court are C. R. Bard, Inc.'s Motion to Dismiss for Insufficient Service of Process, filed on October 5, 2018 (Dkt. No. 17); C. R. Bard's Motion for Summary Judgment, filed on October 18, 2018 (Dkt. No. 23); and the various associated response and reply briefs.

         On December 3, 2019, the District Court referred all pending and future discovery motions as well as all other non-dispositive motions in this case to the undersigned for resolution pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas (“Local Rules”). The District Court also referred all pending and future dispositive motions to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and Rule 1(d) of Appendix C of the Local Rules.

         I. BACKGROUND

         This product liability lawsuit is one of more than 100, 000 lawsuits filed in several multidistrict litigation (“MDL”) cases involving the use of transvaginal surgical mesh to treat pelvic organ prolapse and stress urinary incontinence. The Judicial Panel on Multidistrict Litigation assigned many of these MDL cases to the Honorable Joseph R. Goodwin (“Judge Goodwin”), United States District Judge for the U.S. District Court for the Southern District of West Virginia, Charleston Division. Dkt. No. 27.

         The Plaintiff in this case, Sallie Kelly, alleges that she suffered serious injuries after she was implanted with a Pelvicol Acellular Collagen Matrix device on August 21, 2008, by Dr. Subir Chhikara at the Seton Medical Center in Austin, Texas. Plaintiff and her husband, Boyd Kelly, [1]originally filed this lawsuit on June 26, 2013 in the Southern District of West Virginia against American Medical Systems, Inc. (“AMS”) and C. R. Bard, Inc. (“Bard”), alleging failure to warn, manufacturing defect, design defect, negligent inspection, marketing, packaging, selling, testing and training, breach of express warranty, breach of implied warranty of merchantability, and loss of consortium. See In Re: American Medical Systems, Inc., Pelvic Repair System Products Liability Litigation MDL No. 2325, 2:13-CV-15909 (S.D. W.Va. June 26, 2013).

         On December 8, 2017, AMS and Plaintiff notified Judge Goodwin that they had settled the case and filed a Joint Motion to Dismiss AMS from the lawsuit. Accordingly, on December 12, 2017, Judge Goodwin dismissed AMS from the case and transferred the case to the MDL against Bard (MDL 2187). Dkt. No. 7. On January 30, 2018, Judge Goodwin entered a scheduling order setting the discovery deadline for September 4, 2018, and dispositive motion deadline for September 21, 2018. Dkt. No. 8.

         On April 10, 2018, Bard filed its first motion to dismiss for insufficient process, arguing that it had never been served with the lawsuit, in violation of Federal Rule of Civil Procedure 4(m). Dkt. No. 9. Although Plaintiff had filed her lawsuit five years earlier, Plaintiff claimed “excusable neglect” and alleged that her counsel “only recently discovered through correspondence from Defendant after the service of the Fact Sheet that Defendant was not served with process.” Dkt. No. 11 at p. 2.

         In his Order addressing the motion to dismiss, Judge Goodwin explained that Bard had agreed to waive formal service of process in the case as provided in Pretrial Order No. 47 in the underlying MDL.[2] Dkt. No. 12 at p. 2. The “simple procedure” outlined in Pretrial Order No. 47 required plaintiffs to perfect service by sending the short form complaint, a request for waiver of service, and, if in their possession, a sticker page or medical record identifying the product at issue to three specific defense attorneys by email. Although Judge Goodwin found that Plaintiff had failed to effectuate service by the method described in Pretrial Order No. 47, he allowed Plaintiff “a final chance” to comply with the service of process. Dkt. No. 12 at p. 2. Accordingly, the Court denied the motion to dismiss without prejudice and ordered plaintiffs to perfect service on Bard by July 2, 2018.

         On June 20, 2018, Plaintiff filed her First Amended Short Form Complaint (“Complaint”), which removed her deceased husband Boyd Kelly from the style of the case. See Dkt. No. 15. Plaintiff continued to assert the same product liability claims against Bard.

         On October 5, 2018, Bard filed its second Motion to Dismiss for Insufficient Service of Process, arguing that Plaintiff failed to properly serve Bard by the July 2, 2018 deadline set by Judge Goodwin because she failed to follow the procedure outlined in Pretrial Order No. 47. In response, Plaintiff argues that she properly served the Complaint on Bard on June 20, 2018, when she emailed the Complaint and Plaintiff Profile to Lori Cohen and Michael Brown, who were listed as defense counsel for Bard in its original motion to dismiss.

         On October 18, 2018, Bard also filed a Motion for Summary Judgment arguing that all of Plaintiff's claims are time-barred, and alternatively that her claims fail on the merits.

         Before ruling on either the Motion to Dismiss or the Motion for Summary Judgment, Judge Goodwin transferred this case to this Court on September 26, 2019, “[f]or the convenience of the parties and in order to promote the final resolution of [this case], ” reasoning that the case would be concluded more expeditiously in the venue “from which [it] arise[s].” Dkt. No. 27. at p. 1. The parties ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.