United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
C. Godbey, United States District Judge.
Order addresses Defendants Ethicon, Inc. and Johnson &
Johnson's (collectively, “Defendants”) motion
for partial summary judgment  and Plaintiffs Susan
Famigletti and Michael Famigletti's (collectively,
“Plaintiffs”) motion for partial summary judgment
. For the reasons below, the Court grants in part and
denies in part Defendants' motion and grants in part and
denies in part Plaintiffs' motion.
Origin of the Dispute
manufacture and sell pelvic mesh products, including the
TVT-Oturator (“TVT-O”), that are designed to
prevent stress urinary incontinence once surgically
implanted. First Am. Long Form Compl. 2-5 [52.22]. Plaintiff
Susan Famigletti filed this multi-district member lawsuit
against Defendants after she had a TVT-O sling implanted,
claiming that her pelvic mesh product was defective and
alleging various tort and contract claims. Am. Short Form
Compl. 3-5 ; Brief Support Defs.' Mot. Partial
Summary Judgment 1 . Her husband, co-plaintiff Michael
Famigletti, alleged loss of consortium. Brief Support
Defs.' Mot. Partial Summary Judgment 1 . Both
Plaintiffs and Defendants have filed motions for partial
Summary Judgment Legal Standard
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). In making this determination,
courts must view all evidence and draw all reasonable
inferences in the light most favorable to the party opposing
the motion. United States v. Diebold, Inc., 369 U.S.
654, 655 (1962).
moving party bears the initial burden of informing the court
of the basis for its belief that there is no genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Once the movant has made the required showing,
the burden shifts to the nonmovant to establish that there is
a genuine issue of material fact such that a reasonable jury
might return a verdict in its favor. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986). Factual controversies are resolved in favor of the
nonmoving party “‘only when an actual controversy
exists, that is, when both parties have submitted evidence of
contradictory facts.'” Olabisiomotosho v. City
of Houston, 185 F.3d 521, 525 (5th Cir. 1999)
(quoting McCallum Highlands, Ltd. v. Washington Capital
Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995)).
The Court Grants in Part and Denies in Part Defendants'
Motion for Partial Summary Judgment
move for summary judgment on seven of Plaintiffs' claims.
The Court grants summary judgment for Defendants on three of
these claims and denies Defendants' motion as to the
remaining four claims.
The Court Grants Defendants Summary Judgment on
Plaintiffs' Manufacturing Defect, Strict
Liability-Defective Product, and Fraudulent Concealment
Texas law, a party alleging a manufacturing defect must show
(1) the existence of a manufacturing flaw which renders the
product unreasonably dangerous; (2) that the defect existed
at the time the product left the manufacturer; and (3) that
the defect was a producing cause of the claimant's
injuries. Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
600 (Tex. 2004). Defendants argue that Plaintiffs have
produced no evidence that Susan Famigletti's medical
device deviated from its intended design or that such a
deviation caused her alleged injuries. Further, Defendants
note that the record shows Plaintiffs have not designated any
experts to testify as to the causal relationship between any
manufacturing defect in the medical device and the alleged
injuries. Brief Support Defs.' Mot. Partial Summary
Judgment 3 . Because Plaintiffs do not respond to
Defendants' arguments, and the record provides no
evidence proving these elements of their claim, the Court
grants Defendants summary judgment on this claim.
claims for strict liability-defective product and fraudulent
concealment both fail as independent causes of action. The
strict liability-defective product claim is duplicative of
Plaintiffs' design defect claim. See Cooper Tire
& Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex.
2006). Additionally, Texas law does not recognize fraudulent
concealment as an independent cause of action distinct from
common law fraud. See ExxonMobil Corp. v. Lazy R
Ranch, LP, 511 S.W.3d 538, 544 n.21 (Tex. 2017)
(“The doctrine of fraudulent concealment tolls the
statute of limitations until the fraud is
discovered.”). The Court thus grants Defendants'
summary judgment motion as to both these claims.
The Court Denies Defendants' Motion as to Plaintiffs'
Breach of Warranty, Constructive Fraud, and Unjust Enrichment
law requires that a buyer claiming breach of warranty notify
the seller within a reasonable time of discovering the
alleged breach. Tex. Bus. & Com. Code § 2.607(c)(1).
Failure to provide notice bars the buyer from legal remedies.
Id. Defendants contend that Plaintiffs' failure
to provide notice prior to filing suit causes their breach of
warranty claims to fail. The Defendants do not, however,
address Plaintiffs' arguments that their failure to
provide notice was excused. Pltfs.' Resp. Defs.' Mot.
Summary Judgment 2-3 ...