BENTON – U.S. District Judge Staci Yandle shut down a pelvic mesh suit, finding physician Pernankel Nayak of Effingham contradicted his earlier declaration at a deposition and stated he didn’t write it.
Yandle struck the declaration on May 4, credited Nayak’s deposition testimony, and granted summary judgment to defendants Johnson & Johnson and Ethicon.
Plaintiff Dianne Donaldson of Effingham County had asked Yandle to strike only the portions of the declaration Nayak disowned.
Michael Meyer of Effingham filed her suit in district court in 2015, claiming mesh from two devices in an implant eroded into her tissues.
Former district judge David Herndon transferred it to multi district proceedings before District Judge Joseph Goodwin of Charleston, West Virginia.
Goodwin presided over settlements of thousands of claims, and sent 47 back to the courts of origin for trials in 2019.
Herndon had retired, and the court clerk assigned Yandle.
Johnson & Johnson and Ethicon took an awkward first step, moving to renew a motion for partial summary judgment that Goodwin hadn’t resolved.
In the process, defense counsel Sherry Knutson of Chicago converted it from partial to full summary judgment.
Knutson claimed Donaldson identified no experts except seven treating physicians.
She claimed Donaldson suggested that surgeon Michael Schultheis would testify that the devices were defective, but he didn’t support her claims.
She claimed he testified he knew the risks included pain and scarring.
She claimed he stood by his recommendation of the devices.
She expressed doubt that any of the physicians believed what their expert disclosures ascribed to them.
Meyer challenged it as a summary judgment motion past its deadline, and Yandle set a hearing to decide whether to allow it.
At the hearing, in April 2020, defense counsel Charissa Walker of St. Louis apologized for not following procedure.
She said the case shouldn’t be permitted to waste judicial resources.
Yandle asked Meyer what the prejudice to his plaintiff would be and he said, “I’m struggling to find a prejudice, to tell you the truth.”
He said it might require affidavits, “which shouldn’t be necessary in view of our position that the motion has no merit.”
He said they deposed Schultheis in 2018, and could have raised it with Goodwin.
Yandle said it would be in the interest of justice to allow a summary judgment motion and an opportunity for Donaldson to respond.
Meyer responded on May 21, and attached a declaration Nayak signed on May 18.
It showed Nayak graduated from medical school in India in 1962, and practiced primarily in urology in Effingham since 1977.
It stated that products implanted into his patient were defectively designed and unreasonably dangerous.
It stated that they failed to perform as expected in light of their nature and intended function.
It stated that erosion resulted in development of bladder stones and caused pelvic pain and suffering.
It stated that there was no reasonable secondary cause for the injuries.
Meyer claimed the declaration supported every element of a doctrine Illinois courts have long recognized as a means of proving a defect.
“A defect can be proven in Illinois by circumstantial evidence of a defect rendering the product unreasonably dangerous,” Meyer wrote.
Defendants deposed Nayak on Nov. 25, and he said he agreed to sign the declaration but didn’t write any part of it.
He said he didn’t intend to offer any opinion about what caused the erosion.
He said one of the products was possibly defective.
He said he didn’t know how it was designed.
He said he never considered abnormal use or secondary causes and said there were other reasonable causes.
He said Donaldson’s many other surgeries could have caused scar tissue.
Defense counsel Shayna Cook of Chicago moved to strike his declaration in January, and disputed the value of circumstantial evidence in a separate brief.
She claimed pelvic surgeon Douglas Grier, as expert for Ethicon, found erosion didn’t indicate a defect and there were alternative explanations.
Meyer defended Nayak’s declaration in March, but not completely.
He claimed defendants shouldn’t use the portion of it that was inconsistent with the deposition to create a question of fact.
He claimed portions of the declaration that were consistent with Nayak’s deposition should not be stricken.
Yandle found no value in the declaration and not much in the deposition.
“His sole opinion is that mesh itself can cause complications, erosion into the bladder or the vagina, no matter who makes it,” she wrote.
She found the doctrine allowing circumstantial evidence applies only if a jury can reasonably infer that injury resulted from an unreasonably dangerous condition of the product and the condition existed when it left the defendant’s control.
“The circumstantial evidence must justify an inference of probability, as distinguished from mere possibility,” she wrote.
She found the devices aren’t simple products and their functions are beyond a jury’s common knowledge, experience, or understanding.
“Without the aid of expert testimony, the jury can only speculate as to what inferences to draw,” she wrote.
She found Donaldson produced no evidence to refute Grier.