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Today we have two summary judgment decisions recently issued out of one of the pelvic mesh litigation MDLs – the West Virginia federal court managing consolidated cases related to Boston Scientific’s mesh product.  See Tyree v. Boston Scientific Corp., 2014 U.S. Dist. LEXIS 148271 (S.D.W. Va. Oct. 17, 2014); Tyree v. Boston Scientific Corp., 2014 U.S. Dist. LEXIS 148371 (S.D.W. Va. Oct. 17, 2014).  The opinions are close to identical.  In each instance, with limited discussion, the court disposed of a number of the plaintiffs’ claims – e.g., manufacturing defect and fitness for a particular purpose – and allowed others to go forward to trial – e.g., failure to warn (remember, West Virginia has no learned intermediary doctrine) and implied warranty of merchantability.

But it’s the court’s decisions on plaintiffs’ express warranty claims that merit discussion.  The defendant argued – convincingly, you would think – that it was entitled to summary judgment on these warranty claims because the plaintiffs admitted that they never received or read the written materials (the Directions for Use) in which the warranty was allegedly made.  2014 U.S. Dist. LEXIS 148271, at *14-15; 2014 U.S. Dist. LEXIS 148371, at *13.  That argument sounds pretty good.

But it won’t always work in West Virginia, not in federal court.  Three years ago, the Southern District of West Virginia issued Michael v. Wyeth, LLC, 2011 U.S. Dist. LEXIS 56157 (S.D. W. Va. May 25, 2011), which held in the HRT litigation that, if there is a statement of fact or promise made in connection with the sale of good, the plaintiff need not show reliance on that statement for an express warranty claim to go forward.  Rather, the mere existence of the statement creates a rebuttable presumption that the parties included it as part of their bargain.

Adopting that reasoning, the Tyree court denied summary judgment on both plaintiffs’ express warranty claims.  It cited the Michael court, in particular its statement that, while the plaintiff in that case didn’t read any statements contained in materials provided by the defendant, she had relied on her doctor.  2014 U.S. Dist. LEXIS 148271, at *15; 2014 U.S. Dist. LEXIS 148371, at *14.  But the Michael court’s opinion also made explicit that the doctor had received and read such materials.

There’s nothing in the Tyree opinion, however, to suggest that the two plaintiffs’ doctors received, no less read, the materials that allegedly created the express warranty. Setting aside the advisability in a drug and device case of creating a rebuttable presumption of reliance on an express warranty despite the absence of evidence that the patient actually read the materials that created the warranty, creating that same presumption without evidence that even the patients’ doctors saw the materials could stretch express warranty claims beyond recognition.

Now, it’s certainly possible that there was such evidence in the Tyree cases, and it just didn’t make it into the court’s two opinions – though, that’s a big piece to leave out.  But, as written, this decision could make it even easier to take express warranty claims to trial in West Virginia drug and device cases – at least in federal court.