District Court Rules that Plaintiff’s Prior Bankruptcy Does Not Preclude Products Liability Suit Involving Pelvic Mesh

District Court Rules that Plaintiff’s Prior Bankruptcy Does Not Preclude Products Liability Suit Involving Pelvic Mesh

 The Debtor has sued Ethicon, Inc. and Johnson & Johnson, alleging that she was injured from her use of a medical device they manufactured. Defendants have moved for summary judgment on the ground that the Debtor is judicially estopped from bringing this suit because she failed to disclose it during her 2011 bankruptcy proceedings.

In 2005, the Debtor was surgically implanted with a Gynecare TVT Obturator System device—manufactured by Ethicon—to treat stress urinary incontinence. In October 2008, the FDA issued a public health warning noting that products such as the one implanted in the Debtor were associated with serious complications. It is not clear whether the Debtor was aware of this warning. Between December 2009 and October 2011, the Debtor began visiting her gynecologist to receive treatment for various gynecological and genitourinary symptoms such as painful sexual intercourse, pelvic pain, and urinary problems. The Debtor’s gynecologist never told her that her problems may be caused by the Gynecare TVT device.

In March 2011, the Debtor filed a Chapter 7 petition for bankruptcy. She did not disclose any potential products liability claim against Ethicon or Johnson & Johnson in her schedule B list of personal property. In July 2011, the bankruptcy court granted discharge of her debts in the amount of $164,021.

In October 2011, the Debtor saw a television ad discussing safety problems associated with devices like the Gynecare TVT device. She then contacted the firm of her present counsel to discuss the possibility of bringing a claim against the device manufacturers. In March 2012, the Debtor filed a complaint in this district against Ethicon in which she alleges that she has suffered from mental and physical pain, disability, and permanent injury as a result of the device. The complaint includes claims of negligence, strict liability, and breach of express and implied warranties. In April 2012, the Debtor’s case was transferred to the Southern District of West Virginia as part of multi-district litigation (MDL) proceedings against Ethicon coordinated out of that district. While the case was pending in that district, the Debtor filed an amended complaint in which she added Johnson & Johnson as a defendant.

The Debtor’s case proceeded through discovery and other pre-trial proceedings as part of the MDL. In March 2016, defendants moved for summary judgment on some claims, arguing that the Debtor could not establish certain elements of these claims. Defendants did not raise the issue of judicial estoppel.

Around June 2016, while the summary judgment motions were pending, the Debtor notified the United States Trustee of her suit against defendants. On June 30, 2016, the United States Trustee moved to re-open the  2011 bankruptcy case and to appoint a new trustee.  The bankruptcy court appointed Thomas Springer to act as trustee.  On July 27, 2016, the Debtor filed an amended schedule B form listing her personal property which included her interest in this personal injury lawsuit valued “in excess of $30,000.”

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