United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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, 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).
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.
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.
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. 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.
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.
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
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
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