Rodman v. Ethicon Inc

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 TRICIA RODMAN, MICHAEL CASE NO. C20-6091 BHS 8 RODMAN, ORDER GRANTING 9 Plaintiffs, DEFENDANTS’ MOTION FOR v. SUMMARY JUDGMENT 10 ETHICON, INC., JOHNSON & 11 JOHNSON, 12 Defendants. 13 This matter comes before the Court on Defendants Ethicon, Inc. and Johnson & 14 Johnson’s motion for summary judgment. Dkt. 45. The Court has considered the 15 pleadings filed in support of and in opposition to the motion and the remainder of the file 16 and hereby grants the motion for the reasons stated herein. 17 I. PROCEDURAL HISTORY 18 On June 14, 2013, Plaintiffs Tricia and Michael Rodman filed suit against 19 Defendants in the MDL In re Ethicon, Inc. Products Liability Litigation, MDL No. 2327, 20 located in the Southern District of West Virginia. Dkt. 1. On August 13, 2019, 21 Defendants moved for summary judgment. Dkt. 45. On August 27, 2019, Plaintiffs 22 1 responded. Dkt. 51. On September 4, 2019, Defendants replied. Dkt. 52. The Southern 2 District of West Virginia did not resolve the motion prior to transfer. On October 13, 3 2020, the case was transferred to this Court. Dkt. 47. Consistent with the transfer letter, 4 Defendants moved to renote their fully briefed motion for summary judgment, Dkt. 95, 5 which the Court granted, Dkt. 97. 6 Presently before the Court is Defendants’ motion for summary judgment, Dkt. 45, 7 and the parties’ notices of supplemental authority, Dkts. 95, 96. 8 II. FACTUAL BACKGROUND 9 Plaintiffs bring claims against Defendants arising out of Mrs. Rodman’s surgical 10 implantation of TVT-O—a prolene mesh implant—to treat her stress urinary 11 incontinence. Dkt. 1; Dkt. 45-1, Amended Plaintiff Fact Sheet (“PFS”), at 5. Dr. Mary 12 Ludwiczak performed surgery on Mrs. Rodman to implant the TVT-O device on May 5, 13 2011 in Longview, Washington. PFS at 5. Mrs. Rodman states that she suffered from 14 “mesh erosion that caused severe pain and required revision,” including “pain during 15 intercourse and pelvic pain.” Id. at 6. After the revision surgery, she states that her pain 16 and difficulty with sex continued, her incontinence returned, and she began experiencing 17 difficulty with bowel movements. Id. In addition to her physical pain, she states that she 18 has “suffered psychologically and emotionally[.]” Id. at 7. 19 Dr. Ludwiczak testified that she first received training from Ethicon regarding 20 TVT-O mesh in 2004. Dkt 45-2, Deposition of Mary Ludwiczak, M.D., (“Ludwiczak 21 Depo.”), at 68:2–17. Dr. Ludwiczak further testified that she additionally read about the 22 safety and potential risks of pelvic mesh products in medical journals and literature, that 1 she would discuss the safety and potential risks of a product with her colleagues, and that 2 she usually relied on the American College of Obstetricians and Gynecologists 3 (“ACOG”) as her “gold standard.” Id. at 32:8–33:6. Prior to Mrs. Rodman’s surgery, Dr. 4 Ludwiczak was aware that, in 2008, the FDA had issued a public health notification 5 regarding the use of transvaginal mesh for the treatment of stress incontinence. Id. at 6 33:10–35:6). She additionally testified that, by May 2011, she was aware that acute and 7 chronic pain with intercourse, vaginal scarring, infection, urinary problems, fistula 8 formation, neuromuscular problems, recurrence, erosion, exposure, and extrusion were all 9 risks associated with mesh surgery. See id. at 37:9–39:11. 10 The TVT-O product itself was accompanied by a package insert commonly 11 referred to as “Instructions for Use” (“IFU”). Dr. Ludwiczak testified that she was sure 12 that she read through the TVT products’ IFU “at some point.” Id. at 41:11–15. Specific to 13 Mrs. Rodman’s implant surgery, Dr. Ludwiczak stated that she was “not sure [she] would 14 have read the package insert and then recommended it [i.e., the TVT-O] to her based on 15 the package insert.” Id. at 41:16–22. Furthermore, she testified that any warnings of 16 additional risks would not have changed her decision to recommend the TVT-O 17 procedure to Mrs. Rodman. Id. at 42:1–8. In sum, Dr. Ludwiczak stands by her decision 18 to recommend the product to Mrs. Rodman. Id. at 42:15–17. 19 While Plaintiffs state that they dispute Defendants’ characterization of the facts, 20 they almost exclusively rely on their case specific expert’s, Dr. Dionysios Veronikis, 21 opinion to do so. See Dkt. 51 at 2–6. Dr. Veronikis opines that multiple, safer options for 22 treating Mrs. Rodman’s urinary incontinence were available and that Defendants 1 misrepresented and concealed the risks of the pelvic mesh devices. See Dkt 51-2 at 18– 2 19.1 Plaintiffs allege that Mrs. Rodman suffered severe injuries as a result of her TVT-O 3 implant and Defendants’ misrepresentation and concealment of the TVT-O’s risks. 4 Plaintiffs thus brings product liability, negligence, and fraud claims against Defendants 5 for her injuries arising from the surgical implantation of the TVT-O. 6 III. DISCUSSION 7 Defendants move for summary judgment on all of Plaintiffs’ claims,2 arguing that 8 some of their claims are preempted by the Washington Products Liability Act (“WPLA”), 9 RCW 7.72, et seq., and that the non-preempted claims fail because there is insufficient 10 evidence to establish causation. 11 A. Summary Judgment Standard 12 Summary judgment is proper only if the pleadings, the discovery and disclosure 13 materials on file, and any affidavits show that there is no genuine issue as to any material 14 1 Plaintiffs additionally cite to Exhibits 3 through 6 in support of their claim that 15 Defendants misrepresented and concealed risks but with no specific citations. “It is the parties’ responsibility to cite to the materials in the record they wish the Court to consider.” Graham-Sult v. Clainos, No. C 10-4877 CW, 2016 WL 324347, at *2 (N.D. Cal. 2016) (citing Forsberg v. 16 Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417–18 (9th Cir. 1988) (“The district court is not required to comb the record to find some reason to deny a motion for summary judgment.”)). 17 2 Plaintiffs concede to the dismissal of the following claims: Strict Liability – 18 Manufacturing Defect (Count II), Strict Liability – Defective Product (Count IV), Breach of Express Warranty (Count XI), Breach of Implied Warranty (Count XII), Violation of Consumer Protection Laws (Count XIII), and Unjust Enrichment (Count XV). See Dkt. 51 at 1 nn.2–3. 19 Summary judgment is GRANTED on the conceded claims, and the claims are dismissed with prejudice. Plaintiffs’ remaining claims for the Court’s consideration are: Negligence (Count I), 20 Strict Liability – Failure to Warn (Count III), Strict Liability – Design Defect (Count V), Common Law Fraud (Count VI), Fraudulent Concealment (Count VII), Constructive Fraud 21 (Count VIII), Negligent Misrepresentation (Count IX), Negligent Infliction of Emotional Distress (Count X), Gross Negligence (Count XIV), Loss of Consortium (Count XVI), Punitive 22 Damages (Count XVII), and Discovery Rule and Tolling (Count XVIII). 1 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 2 The moving party is entitled to judgment as a matter of law when the nonmoving party 3 fails to make a sufficient showing on an essential element of a claim in the case on which 4 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 5 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, 6 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. 7 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must 8 present specific, significant probative evidence, not simply “some metaphysical doubt”). 9 Conversely, a genuine dispute over a material fact exists if there is sufficient evidence 10 supporting the claimed factual dispute, requiring a judge or jury to resolve the differing 11 versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. 12 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 13 The determination of the existence of a material fact is often a close question. The 14 Court must consider the substantive evidentiary burden that the nonmoving party must 15 meet at trial—e.g., a preponderance of the evidence in most civil cases. Anderson, 477 16 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual 17 issues of controversy in favor of the nonmoving party only when the facts specifically 18 attested by that party contradict facts specifically attested by the moving party. The 19 nonmoving party may not merely state that it will discredit the moving party’s evidence 20 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. 21 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, 22 1 nonspecific statements in affidavits are not sufficient, and missing facts will not be 2 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). 3 B. WPLA Preemption 4 Defendants first argue that the WPLA preempts the majority of Plaintiffs’ claims, 5 specifically their claims for: Negligence (Count 1), Strict Liability – Failure to Warn 6 (Count III), Strict Liability – Design Defect (Count V), Fraudulent Concealment (Count 7 VII), Negligent Misrepresentation (Count IX), Negligent Infliction of Emotional Distress 8 (Count X), and Gross Negligence (Count XIV). Dkt. 46 at 7. Plaintiffs assert that their 9 claims are not preempted and oppose Defendants’ motion as to their design defect, failure 10 to warn, negligence, and fraud-based claims. Dkt. 51 at 8. 11 The WPLA “creates a single cause of action for product-related harms that 12 supplants previously existing common law remedies.” Wash. Water Power Co. v. 13 Graybar Elec. Co., 112 Wn.2d 847, 860 (1989) (en banc). The WPLA’s statutory cause 14 of action preempts all product-related common-law claims based on any substantive legal 15 theory except fraud, intentionally caused harm, or claims under Washington’s Consumer 16 Protection Act. RCW 7.72.010(4). The WPLA clearly contemplates negligence and 17 negligent misrepresentation within its scope of preemption. Id. (a product liability claim 18 includes, inter alia, any claim based on negligence or misrepresentation, whether 19 negligent or innocent). Additionally, this Court has concluded that a claim for negligent 20 infliction of emotional distress falls within the WPLA’s scope of preemption. March v. 21 Ethicon, Inc., 2021 WL 719261, at *3 (W.D. Wash. Feb. 24, 2021) (distinguishing 22 Bylsma v. Burger King Corp., 176 Wn.2d 555, 561–62 (2013)). Plaintiffs’ claims for 1 Negligence (Count 1), Negligent Misrepresentation (Count IX), Negligent Infliction of 2 Emotional Distress (Count X), and Gross Negligence (Count XIV) clearly fall within the 3 WPLA’s preemptive scope. Summary judgment is therefore GRANTED, and the 4 negligence-based claims are dismissed with prejudice. 5 Plaintiffs’ claims for Strict Liability – Failure to Warn (Count III), Strict Liability 6 –Design Defect (Count V), and Fraudulent Concealment (Count VII) are not preempted, 7 however. The WPLA permits claims against a product manufacturer “if the claimant’s 8 harm was proximately caused by the negligence of the manufacturer in that the product 9 was not reasonably safe as designed or not reasonably safe because adequate warnings or 10 instructions were not provided.” RCW 7.72.030(1). These claims are commonly known 11 as design defect claims and failure to warn claims, respectively. See Kirkland v. Emhart 12 Glass S.A., 805 F. Supp. 2d 1072, 1076 (W.D. Wash. 2011). Plaintiffs’ short form 13 complaint asserts strict liability claims for failure to warn and design defect, and the short 14 form complaint’s simplified pleading does not preclude Plaintiffs from bringing these 15 claims under the WPLA. And Plaintiffs are correct that the WPLA’s scope of preemption 16 excepts fraud. See RCW 7.762.010(4); Bylsma, 176 Wn.2d at 559 (collecting cases 17 holding the same). 18 As these remaining claims are not preempted, the Court will now turn to the merits 19 of Plaintiffs’ WPLA and fraud-based claims. 20 21 22 1 C. Product Liability Claims 2 1. Strict Liability – Failure to Warn 3 The WPLA permits recovery “if the claimant’s harm was proximately caused by 4 the negligence of the manufacturer in that the product was . . . not reasonably safe 5 because adequate warnings or instructions were not provided.” RCW 7.72.030(1). To 6 prevail on a failure to warn claim, a plaintiff must show that (1) the defendant failed to 7 sufficiently warn, (2) the plaintiff suffered damages, and (3) the defendant’s failure to 8 sufficiently warn of the dangers was a proximate cause of the plaintiff’s damages. See, 9 e.g., Little v PPG Industries, Inc., 19 Wn. App. 812, 818 n.3 (1978) (approving the 10 Restatement of Torts’ recitation of the elements). However, in the context of medical 11 failure to warn claims, the duty of the manufacturer to warn is satisfied if the 12 manufacturer gives adequate warning to the physician who prescribes or implants the 13 product. Terhune v. A.H. Robins Co., 90 Wn.2d 9, 13 (1978). 14 Defendants argue that Plaintiffs’ failure to warn claim fails because Mrs. 15 Rodman’s implanting physician—Dr. Ludwiczak—was aware of the specific risks and 16 injuries Mrs. Rodman attributes to her mesh implant and because Dr. Ludwiczak did not 17 rely on any materials provided by Defendants. Dkt. 46 at 10–12. In order to prove 18 causation, Plaintiffs must show that Mrs. Rodman’s implanting physician was aware of 19 the alleged inadequate warning made by Defendants. See Cutter v. Ethicon, Inc., No. 20 5:19-443-DCR, 2020 WL 109809, at *8 (E.D. Ky. Jan. 9. 2020) (“Dr. Guiler testified that 21 he did not consult these materials to obtain information about the risks of implanting the 22 Prolift device in Jenesta and, in fact, has never relied on them for such information.”). 1 They must also show that her physician would have acted differently had he been given 2 an adequate warning. See Contreras v. Bos. Sci. Corp., No. 2:12-cv-03745, 2016 WL 3 1436682, at *4 (S.D.W. Va. Apr. 11, 2016) (“Here, the plaintiffs have not provided any 4 citations to the record showing that Dr. Baker, the implanting physician, would have 5 taken a different course of action even if she had been given an adequate warning.”); 6 Fulgenzi v. PLIVA, 140 F. Supp. 3d 637, 648 (N.D. Ohio 2015) (“The undisputed facts in 7 the record establish that plaintiff’s physicians did not ever read, let alone rely on, 8 PLIVA’s inadequate 2004 warning.”); Higgins v. Ethicon, Inc., No. 2:12-cv-01365, 2017 9 WL 2813144, at *3 (S.D.W. Va. Mar. 30, 2017) (granting summary judgment on a Texas 10 law failure to warn claim because “[t]he plaintiffs have failed to present any testimonial 11 or other evidence that Dr. Anhalt would not have used or prescribed the TVT-S to treat 12 Ms. Higgins had he received a different warning.”). 13 Plaintiffs argue that Defendants failed to provide adequate warnings of the risks 14 associated with the TVT-O device to Dr. Ludwiczak. They assert that at the time of Mrs. 15 Rodman’s TVT-O implant surgery, Dr. Ludwiczak “had read the IFU in addition to 16 relying on the training provided by Ethicon.” Dkt. 51 at 10 (citing Ludwiczak Depo. at 17 32:8–16, 41:11–15, 71:18–21). It is true that Dr. Ludwiczak received training from 18 Ethicon in 2004 and that she testified that she would have read through the IFU “at some 19 point.” See Ludwiczak Depo. at 68:2–17; 41:11–15. But Dr. Ludwiczak further testified 20 that she was not sure that she would have read the IFU prior to Mrs. Rodman’s surgery 21 and then recommended the product to her. Id. at 41:16–22. Based on the evidence cited 22 1 by the parties, it is unclear whether Dr. Ludwiczak actually relied on Defendants’ 2 labeling or whether she relied on her own knowledge. 3 But Plaintiffs must also show to establish proximate cause that, if adequately 4 warned of the risks, Dr. Ludwiczak “would have treated the product differently and 5 avoided the harm.” Ayers By and Through Smith v. Johnson & Johnson Baby Products 6 Co., 59 Wn. App. 287, 291 (1990). Plaintiffs cite Dr. Ludwiczak’s deposition in which 7 she testified that, if informed of different risks associated with the TVT-O, she would 8 have informed Mrs. Rodman of those risks. See Dkt. 51 at 11. But, Dr. Ludwiczak 9 testified that she stands by her decision to recommend the TVT-O device to Mrs. 10 Rodman. Ludwiczak Depo. at 42:15–17. Plaintiffs mischaracterize Dr. Ludwiczak’s 11 testimony to be that “had she been adequately informed by Defendants, she likely would 12 have altered the course of her decision to implant the TVT-O device in Ms. Rodman.” 13 Dkt. 51 at 11. The uncontroverted evidence is that Dr. Ludwiczak would have informed 14 Mrs. Rodman of these additional risks, not that she “would have treated the product 15 differently and avoided the harm.” Ayers, 59 Wn. App. at 291. 16 Even assuming Defendants’ warnings were inadequate, Plaintiffs have not 17 established proximate cause because Dr. Ludwiczak testified that she would have still 18 recommended the TVT-O if adequately warned of the risks. Summary judgment is 19 therefore GRANTED as to Plaintiff’s Strict Liability – Failure to Warn claim, and that 20 claim is dismissed with prejudice. 21 22 1 2. Strict Liability – Design Defect 2 The WPLA also allows for recovery “if the claimant’s harm was proximately 3 caused by the negligence of the manufacturer in that the product was not reasonably safe 4 as designed[.]” RCW 7.72.030(1). To prevail in a WPLA claim for design defect, a 5 plaintiff must show that (1) a manufacturer’s product (2) not reasonably safe as designed 6 (3) caused harm to the plaintiff. Pagnotta v. Beall Trailers of Or., Inc., 99 Wn. App. 28, 7 36 (2000). Defendants again argue that Plaintiffs cannot establish proximate causation. 8 Expert testimony is not always required to establish causation for a design defect 9 claim, but “[e]xpert testimony is required to establish causation when an injury involves 10 obscure medical factors that would require an ordinary lay person to speculate or 11 conjecture in making a finding.” Bruns v. PACCAR, Inc., 77 Wn. App. 201, 214 (1995) 12 (internal citations omitted). Such is the case here. Plaintiffs’ “required expert testimony 13 must provide proof that the defect ‘more probably than not’ caused [Mrs. Rodman’s] 14 injuries.” Id. at 215. 15 Dr. Veronikis is Plaintiffs’ sole expert and their case-specific expert. Defendants 16 note, however, that Dr. Veronikis’s expert report is unsworn. See Dkt 52 at 11 (citing 17 Dkt. 51-2). Courts in this Circuit have routinely held that unsworn expert reports are 18 inadmissible. See, e.g., Aecon Bldgs., Inc. v. Zurich N. Am., 572 F. Supp. 2d 1227, 1237 19 (W.D. Wash. 2008); Shuffle Master, Inc. v. MP Games LLC, 553 F. Supp. 2d 1202, 20 1210–11 (D. Nev. 2008) (citing various authorities and explaining that unsworn expert 21 reports are not admissible to support or oppose summary judgment). But, a court may 22 consider evidence that “could be presented in an admissible form at trial.” Fraser v. 1 Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). As Plaintiffs could present Dr. Veronikis’ 2 expert report in an admissible form if accompanied by a sworn declaration, the Court will 3 consider the contents of his report for the purposes of summary judgment. 4 Dr. Veronikis opines that Mrs. Rodman’s TVT-O implant “has continued to 5 contract, shrink, and degrade in vivo, causing chronic inflammation and nerve 6 entrapment, muscle spasm resulting in the chronic pain she is currently experiencing” and 7 that “[s]afer alternative products and surgical procedures to treat [Mrs. Rodman’s] SUI 8 were available at the time of Mrs. Rodman’s implant.” Dkt. 51-2 at 18. While Dr. 9 Veronikis discusses the injuries Mrs. Rodman suffers from because of her TVT-O 10 implant, his report does not connect any of her injuries to specific design defects. He does 11 state that “safer alternative designs would have significantly reduced the risk of the 12 injuries suffered by Mrs. Rodman,” but he does not offer an opinion on any of the TVT- 13 O’s design defects. 14 Plaintiffs’ evidence as to causation of their design defect claim is similar to the 15 evidence considered in Abt v. Ethicon, Inc., No. 1:20-cv-0047 SRC, 2020 WL 4887022, 16 at *3–4 (E.D. Mo. Aug. 20, 2020). In Abt, the plaintiff’s case-specific expert opined that 17 the defective mesh was the cause of the plaintiff’s symptoms and complications, but he 18 did not connect a specific design defect with her injuries. Id. at *3. The district court 19 concluded that “at most Abt has established correlation between the implant’s design 20 defects and her injuries; she has not shown causation. Without some evidence showing 21 her implant caused her injuries, beyond conclusory statements, Abt’s claim for strict 22 liability design defect fails.” Id. at *4. 1 Dr. Veronikis has not opined as to any of the TVT-O’s design defects or whether 2 any such defects caused Mrs. Rodman’s injuries. His expert report does not establish that 3 “the defect ‘more probably than not’ caused [Mrs. Rodman’s] injuries.” Bruns, 77 Wn. 4 App. at 215. As such, Plaintiffs have not created a genuine issue of material fact as to 5 causation. The Eastern District of Washington has also reached this conclusion. See 6 Lynch v. Ethicon, Inc., 2020 WL 5733184, at *2 (E.D. Wash. Sept. 24, 2020.) (“But 7 without an expert opinion asserting a causal link between the general design defects 8 identified by Dr. Veronikis and Lynch’s injuries, Lynch has not established a genuine 9 issue of material fact.” (emphasis in original)). 10 Summary judgment is therefore GRANTED as to Plaintiffs’ Strict Liability – 11 Design Defect claim, and that claim is dismissed with prejudice. 12 D. Fraud-Based Claims 13 Plaintiffs’ remaining fraud-based claims are for Common Law Fraud (Count VI), 14 Fraudulent Concealment (Count VII), and Constructive Fraud (Count VIII). Defendants 15 argue that these claims fail because Plaintiffs cannot establish a false statement of 16 material fact upon which Mrs. Rodman relied and because there was no special 17 relationship between Defendants and Mrs. Rodman to give rise to a duty to disclose. Dkt. 18 46 at 19–20. 19 Washington has adopted the nine common law elements of fraud, and, at its core, 20 a fraud claim requires a false representation of material fact. See Stiley v. Block, 130 21 Wn.2d 486, 505 (1996) (listing the nine elements). Defendants argue that Mrs. Rodman 22 cannot identify any specific statement made by them that was communicated to her. Dkt. 1 46 at 19. Plaintiffs retort that they “materially relied on the graudulent statemetns 2 Defendants deliberately made” but do not cite to any specific evidence in the record or 3 specific statements made to Mrs. Rodman. Dkt. 51 at 17. Rather, Plaintiffs focus their 4 arguments on the representations made to Dr. Ludwiczak through the IFU. Plaintiffs have 5 not put forth any evidence that Defendants made any misrepresentations of material fact 6 to them specifically or that Mrs. Rodman actually relied on any statement made by 7 Defendants. Absent that essential evidence, summary judgment is GRANTED as to 8 Plaintiffs’ Common Law Fraud claim, and the claim is dismissed with prejudice. 9 Plaintiffs’ final fraud claims are for Fraudulent Concealment (Count VII) and 10 Constructive Fraud (Count VIII). Both claims require a “special relationship” between 11 the parties that gives rise to a duty to disclose. See Giraud v. Quincy Farm & Chem¸102 12 Wn. App. 443, 452 (2000) (fraudulent concealment); Green v. McAllister, 103 Wn. App. 13 452, 467–68 (2000), superseded by statute on other grounds, RCW 25.05.250(2), as 14 recognized in McLelland v. Paxton, 11 Wn. App. 2d 181, 221–22 (2019) (constructive 15 fraud). Whether a duty to disclose exists is a question of law. Colonial Imps., Inc. v. 16 Carlton Nw., Inc., 121 Wn.2d 726, 731 (1993). Defendants argue that, as a matter of law, 17 no special relationship or duty to disclose exists between a medical device manufacturer 18 and a patient. Indeed, Washington law establishes that “a manufacturer has a duty to warn 19 the medical profession and not the user of its risks.” Terhune, 90 Wn.2d at 18. Plaintiffs 20 do not respond to this argument nor cite to or provide case law to the contrary. The Court 21 therefore concludes, as a matter of law, that Defendants did not owe a duty of disclosure 22 1 to Mrs. Rodman. Summary judgment is GRANTED as to Plaintiffs’ Fraudulent 2 Concealment and Constructive Fraud claims, and the claims are dismissed with prejudice. 3 E. Remaining Claims 4 Plaintiffs’ remaining substantive claim is for Mr. Rodman’s loss of consortium. 5 Loss of consortium is typically thought of as a “loss of society, affection, assistance and 6 conjugal fellowship, and . . . loss or impairment of sexual relations” in the marital 7 relationship. Ueland v. Pengo Hydra-Pull Corp., 103 Wn.2d 131, 132 n.1 (1984) (citing 8 Black’s Law Dictionary 280 (5th ed. 1979)). In Washington, a loss of consortium claim is 9 a separate and independent claim rather than a derivative claim. Green v. A.P.C. (Am. 10 Pharm. Co.), 136 Wn.2d 87, 101 (1998). But, no claim for loss of consortium will arise if 11 no tort is committed against the impaired spouse. Conradt v. Four Star Promotions, Inc., 12 45 Wn. App. 847, 853 (1986). Because Mrs. Rodman’s underlying tort claims have been 13 dismissed with prejudice, Mr. Rodman’s loss of consortium claim necessarily fails as 14 well. Summary judgment is therefore GRANTED as to Plaintiffs’ loss of consortium 15 claim, and the claim is dismissed with prejudice. 16 Plaintiffs’ final two claims are for Punitive Damages (Count XVII) and Discovery 17 Rule and Tolling (Count XVIII). Defendants did not move for summary judgment for 18 these final, procedurally-based claims. However, because Plaintiffs’ substantive claims 19 have been dismissed, their claim for punitive damages is moot. See Hofschneider v. City 20 of Vancouver, 182 F. Supp. 3d 1145, 1155 (W.D. Wash. 2016). Their punitive damages 21 claim is DISMISSED with prejudice. Similarly, their claim for “Discovery Rule and 22 1 Tolling” cannot stand absent a substantive claim and is therefore DISMISSED with 2 prejudice. 3 IV. ORDER 4 Therefore, it is hereby ORDERED that Defendants’ motion for summary 5 judgment, Dkt. 45, is GRANTED. 6 The Clerk shall enter a JUDGMENT and close the case. 7 Dated this 15th day of June, 2021. A 8 9 BENJAMIN H. SETTLE 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22