Back by popular demand, here is the mesh case of the week: Clowe v. Ethicon, Inc., 2022 U.S. Dist. LEXIS 46387 (N.D. Texas March 16, 2022). There is a bit of same-old-same-old in this case, but there is also something new.

Let’s start by getting through the same-old. The plaintiffs (the wife suffered the injury and the husband sued for loss of consortium) had abandoned many of their claims, including manufacturing defect, warranties, consumer protection, and unjust enrichment. What remained was the usual duet of design defect and failure to warn. The Clowe court confronted the (again usual) issue of whether the plaintiff side was proposing a safer alternative design, which Texas law requires for a design defect claim, or was actually proposing an entirely different product, which would mean the design defect claim could go no further. As the Clowe court observed, “Under Texas law, Plaintiffs must propose a safe and feasible alternative design to the alleged defective design, not different procedures or strategies entirely.” Think of the difference between a motorcyclist suing over injuries sustained in an accident. If the plaintiff says that the motorcycle should have had a better steering system, there might be a case. But if the plaintiff says the injuries would have been avoided if the motorcycle had instead been a car, that’s an entirely different product, not a safer version of the product at issue. With the latter scenario, the design defect claim goes bye-bye.

In Clowe, the plaintiff’s expert proposed four alternative ways of addressing the plaintiff’s pelvic problems. One involved an entirely different sort of surgery, called the Burch procedure, and the Clowe court held that such surgical procedure was not an alternative product. But the Clowe court held that there was a factual issue as to whether the three other proposed alternatives, which employed different materials, were safer alternative products We know from our own involvement in mesh litigation that the proposed safer alternatives are neither safer nor feasible alternatives, so we think the Clowe judge afforded the plaintiff and her experts too much leeway. Be that as it may, the design defect claim is headed toward the jury, even though it probably shouldn’t. In our view, this part of the Clowe opinion is rather disappointing.

But the Clowe court’s handling of the failure to warn claim meets with DDL blog approval. The core issue turned on warning causation under the learned intermediary rule. The prescribing physician testified that he was already aware of all the relevant risks. A warning that included everything the plaintiff lawyers wanted would have made no difference. The prescribing physician “testified with unmistakable clarity that even if [the] IFU contained a more detailed explanation of risks, he would still have recommended using the [mesh] device to treat Clowe.” The plaintiff lawyers had managed to extract some testimony from the prescriber that he would have read with interest any additional information about the mesh product’s complication rates. This ploy often works at doctor depositions. What doctor is going to disclaim any curiosity about additional information? But the plaintiff side had not met its burden of proving that the additional information would have altered the prescribing decision. No difference means no failure to warn claim. The defense won summary judgment.

Now we get to the new, interesting issue in the Clowe case. The Clowe court presented an unusually thorough discussion reaching the pro-defense position that loss of consortium is not available when the plaintiff and her spouse were not married at the time of the alleged injury. The Texas Supreme Court has not yet addressed this issue, so the Clowe court needed to make an “Erie guess.” To the extent that Texas courts, or courts discussing Texas law, discussed loss of consortium claims, they consistently said that a loss of consortium claim arises from intentional or negligent conduct “toward the marital relationship.” Meanwhile, courts from other jurisdictions have generally “denied recovery for loss of consortium where the injury occurs before marriage.” Armed with these precedents, the Clowe court predicted that “the Texas Supreme Court, more likely than not, would preclude a loss of consortium claim when the alleged injury predated the marriage.” Thus, even though the plaintiff in Clowe alleged that they “maintained an intimate relationship before the injury occurred [and] the injuries [Clowe] suffered as a result of the surgeries still interfere with their relationship,” the Clowe court dismissed the loss of consortium claim because the injuries antedated the date of marriage. We here at the DDL blog doubt we’ve ever covered that permutation before. Given the thorough discussion of pertinent case law in Clowe, if we (or our readers) ever do encounter this fact pattern, starting with Clowe will save our clients some time and money.The fact that pelvic mesh cases can still teach us something is both surprising and oddly invigorating.