The pelvic-mesh plaintiff wrote this in his affidavit: “I do not know whether mesh was implanted in my body.” Favor v. W.L. Gore Assocs., 2014 U.S. Dist. LEXIS 17134, *6 (S.D. Oh. Feb. 11, 2014). We lead with that admission today because we thought it would be a good day to use the old literary trick of foreshadowing – though we’ll admit that this isn’t a subtle use of it. But then again that sure isn’t a subtle affidavit.
Not missing the obvious, W.L. Gore Associates moved to dismiss. Now, plaintiff did allege in his complaint that a Gore mesh product had in fact been implanted in him. But then came the affidavit. A plaintiff with a sworn statement contradicting his own pleadings sure seems like good grounds for dismissal.
But the court was able to sidestep all that and still dismiss the complaint. Plaintiff failed to assert his claims under the Ohio Product Liability Act (“OPLA”), instead alleging common law claims. The OPLA abrogates common law claims, so plaintiffs had asserted abrogated claims. On this ground alone, the court dismissed the complaint. Id. at *14-15. Now, we’ve often seen courts take such improperly pleaded common law claims and simply treat them as if they were stated under the particular product liability act in play. Not this court. Why? We can’t be sure. But there may be a clue found in plaintiff’s affidavit.
Gore wasn’t the only defendant. Plaintiff also sued Bard and Davol. But, this time, plaintiff simply made no factual allegations about the products of these defendants. Bard and Davol moved for summary judgment. Id. at *12. And they got it. It seems that plaintiff, in his opposition papers as to another defendant, admitted that “his counsel simply ‘researched all makers of surgical mesh and attempted to cast the broadest possible net in order to avoid future statute of limitations problems.”” Id. at *4-5. That certainly seems like another doozy of an admission. Making matters worse – or better, depending on how you look at it – plaintiff didn’t respond to the Bard and Davol motions at all. The court granted summary judgment. Id. at *14.
We should also note that plaintiff sued the doctors and hospital. Such claims require an affidavit of merit. Plaintiff didn’t provide one. He didn’t even oppose the medical defendants’ motions for judgment on the pleadings. The court granted the motions. Id. at *7-12. (We suspect that the weakness of the claims against the medical defendants is the reason that the court had earlier denied plaintiff’s motion to remand the case to state court.)
Not surprisingly, the medical defendants and Bard and Davol moved for Rule 11 sanctions. They seemed warranted. But the court denied the motions.
As to the medical defendants, the court was concerned that awarding sanctions would require it to make evidentiary determinations at the pleadings stage. Id. at *15-20. (We suspect, though, that the court may have been concerned that there were inaccuracy issues with the medical records.) Regardless, you’d think that the Bard and Davol defendants had a slam dunk. The plaintiff all but admitted that he sued them for no reason other than that they were in the same industry as Gore. But the court seemed dead set against imposing sanctions. Bard and Davol had failed to file an affidavit confirming that they had given plaintiff the required 21 days to withdraw or correct his pleading. Id. at *20. Bard and Davol told the court that they had done so, but that wasn’t enough. Id. at *20-21.
We’re not sure what else to say about this case and these types of complaints. You’d think that awarding sanction might be the best way to stop them. But the court wasn’t willing to do so here.
So we’ll leave you with a completely unrelated recommendation. Watch “Drunk History” on Comedy Central. We saw a few episodes this weekend and found it hard to breathe through all the laughing.