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Kelly v. Ethicon, Inc., 2020 U.S. Dist. LEXIS 191665 (N.D. Iowa Oct. 16, 2020), is a remanded pelvic mesh case. The complaint included the usual panoply of causes of action for negligence, strict liability, fraud, and breach of warranty. Failure to warn, as usual, was central to the plaintiff’s case.

During the years while the case was in the MDL in West Virginia, the plaintiff in Kelly did not depose the implanting surgeon. This inactivity continued after remand to the Northern District of Iowa. Only after the defendant obtained partial summary judgment, in significant part because there was no evidence of warning causation, did the plaintiff belatedly seek to take the implanter’s deposition, along with seeking reconsideration of the summary judgment.

Leave to take the deposition was denied for lack of any good cause for the delay. The plaintiff had missed the discovery deadlines. Whether applying Fed. R. Civ. P. 16(b) or 60(b), the Kelly court found no good reason, no excusable neglect, for the plaintiff’s failure to depose the implanter. Even if it took skip-tracing to track the doctor down, the plaintiff lawyers could have done so sooner. They bemoaned their allegedly heavy workload – 26 cases within the particular “wave” of MDL cases. Too bad. The court had no sympathy. Nor should it have. Let’s face it: 26 isn’t that many, there was plenty of time, and why file cases if you cannot work them up properly?

Denied the opportunity to depose the implanting doctor, the plaintiff’s reconsideration motion was doomed. But the plaintiff went through the motions, so did the Kelly court, and so shall we.

The plaintiff tried to save its failure to warn claim by arguing that the learned intermediary rule does not apply in Iowa. The Kelly court disagreed, holding that Iowa would follow the learned intermediary rule. The plaintiff next argued that even if the learned intermediary rule applied in Iowa, it was called off in this case because of the physician’s lack of knowledge of the relevant risks. But the physician’s lack of knowledge was purely speculative (remember – no deposition), and the exception makes no sense.

The plaintiff next argued that she should have been permitted an opportunity to make out a case of failure to warn post-sale. There were several problems with that argument. The plaintiff had never before claimed post-sale failure to warn, no Iowa precedent supports a post-sale duty to warn, and, even if it did, the learned intermediary rule would still apply and the plaintiff would again lose on warning causation for not deposing the implanter.

Also denied was the plaintiff’s attempt to rescind her abandonment of design claims.

The defendant’s victory went beyond preserving the partial summary judgment. For, you see, the defendant had also filed a motion. The defendant sought leave to file a successive summary judgment motion on the statute of limitations to get rid of the remaining claims. The only cause presented for the late summary judgment motion was judicial efficiency. No problem. It is never too late for judicial efficiency. The Kelly court found that “it is ultimately in the interest of all involved to address the statute of limitations issue on a successive motion for summary judgment rather than ignoring it until trial.”

As a defense lawyer reading the Kelly opinion, we have to wonder, like the resurrected baseball player in Field of Dreams, is this Heaven?

No. It is the Northern District of Iowa.