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Wahl v. General Electric Co.

United States District Court, M.D. Tennessee, Nashville Division

November 14, 2013

MARYE WAHL, Plaintiff,
v.
GENERAL ELECTRIC COMPANY, et al., Defendants

Page 938

For Marye Wahl, Plaintiff: Tor A. Hoerman, LEAD ATTORNEY, Eric M. Terry, TorHoerman Law, Edwardsville, IL; R. Christopher Gilreath, Gilreath & Associates (TN), Memphis, TN.

For General Electric Company, GE Healthcare AS, GE Healthcare, Inc., doing business as GE Healthcare Medical Diagnostics, Defendants: Christopher M. Strongosky, LEAD ATTORNEY, DLA Piper - New York, New York, NY; Heidi L. Levine, LEAD ATTORNEY, DLA Piper U.S. LLP, New York, NY; Matthew J. Evans, LEAD ATTORNEY, Dwight E. Tarwater, Paine, Tarwater, and Bickers, LLP, Knoxville, TN.

For GE Healthcare, Defendant: Christopher M. Strongosky, LEAD ATTORNEY, DLA Piper - New York, New York, NY; Heidi L. Levine, LEAD ATTORNEY, DLA Piper U.S. LLP, New York, NY; Matthew J. Evans, LEAD ATTORNEY, Paine, Tarwater, and Bickers, LLP, Knoxville, TN.

OPINION

Page 939

MEMORANDUM

ALETA A. TRAUGER, United States District Judge.

Defendants General Electric Company, GE Healthcare AS, and GE Healthcare, Inc. (collectively, " GE" ) have filed a Motion for Summary Judgment (Docket No. 35). For the reasons stated herein, the motion will be granted, and the plaintiff's claims will be dismissed.

BACKGROUND

I. Facts and Procedural History

Marye Wahl, a resident of Nashville, Tennessee since 1999, suffers from nephrogenic systemic fibrosis (" NSF" ). NSF is a progressive, incurable, and potentially fatal systemic disease that, among other deleterious effects, hardens organs and disfigures the skin. It has only one known cause: use of gadolinium-based contrast agents (" GBCAs" ), such as GE's " Omniscan" product.

On May 8, 2006 and November 1, 2006, Wahl underwent Magnetic Resonance Imaging (" MRI" ) tests at St. Thomas Hospital in Nashville. In connection with those MRI tests, her physicians administered Omniscan as a contrast agent. In February 2007, GE added a " black box" warning to its Omniscan package that warned physicians of the risks of using GBCAs (including Omniscan) on renally impaired patients. The warning was too late to help Wahl. [1]

Unrebutted evidence introduced by the defendants establishes that, from the point that GE first offered Omniscan on the market in 1993, (1) the FDA-required label on each Omniscan package contained a two-year expiration date, and (2) the product was manufactured abroad - either in Ireland or Norway. Accordingly, although the specific containers of Omniscan administered to Wahl in May and November 2006 are unknown, there is no genuine dispute that the product contained a label bearing a two-year expiration date. Therefore, even assuming that the Omniscan administered to Wahl was manufactured on the date of administration - an unrealistically generous assumption - the products expired no later than May 8, 2008 and November 1, 2008, respectively. [2]

For its part, GE does not dispute the following relevant facts: (1) it issued a uniform set of warnings and instructions for the use of Omniscan, which was distributed internationally; (2) the package inserts relevant to this litigation and GE's

Page 940

" Omniscan Safety Review Advisory Meeting Briefing Document" both listed a New Jersey address for GE (or its predecessors); (3) GE was subject to New Jersey law when selling Omniscan, (4) GE made reporting, warning, and labeling decisions in New Jersey, and (5) GE used an unknown third-party distributor to distribute Omniscan to the facility where Wahl was administered Omniscan. [3]

Before Wahl filed the instant lawsuit (indeed, before she was even diagnosed with NSF), multiple other plaintiffs injured by GBCAs filed lawsuits against GE and other GBCA manufacturers, generally alleging product defect theories. Many of these lawsuits were consolidated into a Multi-District Litigation (" MDL" ) proceeding before the United States District Court for the Southern District of Ohio (the " MDL Court" ). [4] After the MDL was created, the MDL Court issued a March 25, 2008 Case Management Order (" CMO No. 3" ). (Docket No. 51, Ex. 3.) In relevant part, CMO No. 3 permitted potential plaintiffs to file actions in the Southern District of Ohio, whether or not jurisdiction or venue was otherwise proper.

On October 4, 2010, while Wahl was living in Tennessee, Wahl was diagnosed with NSF by a physician at Vanderbilt Dermatology in Nashville. Wahl apparently continues to receive treatment in Tennessee. [5] At least for purposes of summary judgment, the parties do not dispute that the May 2006 and November 2006 exposures to Omniscan caused Wahl to contract NSF. On May 11, 2011, pursuant to CMO No. 3, Wahl filed the instant lawsuit against GE directly in the Southern District of Ohio.

The defendants apparently settled all but a handful of the 900 lawsuits comprising the MDL. Wahl's case, among a handful of others, was not resolved. Pursuant to an Agreed Order of Transfer Pursuant to 28 U.S.C. § 1404(a), the MDL Court transferred Wahl's lawsuit to this court. [6]

II. GE's Motion for Summary Judgment

Following transfer, GE moved for summary judgment, arguing that Wahl's

Page 941

claims are barred by the statute of repose set forth in the Tennessee Products Liability Act (" TPLA" ), Tenn. Code Ann. § 29-28-103. In response, Wahl argues that her claims should be governed by New Jersey law, which does not have an applicable statute of repose. [7]

In support of its Motion for Summary Judgment, GE filed a supporting Memorandum of Law (Docket No. 36), a Statement of Undisputed Material Facts (Docket No. 37) (defendants' SUMF), and evidentiary materials, including, inter alia, the Declaration of Danny Healy (Docket No. 35, Ex. C.) Wahl filed a Response in opposition (Docket No. 41), a combined Response to the defendants' SUMF and a Statement of Additional Undisputed Material Facts (" Wahl's SUMF" ) (Docket No. 40), and evidentiary exhibits (Docket Nos. 45 (Exs. A-H), 46 (Ex. I), 47 (Exs. J-N)). [8] GE filed a Reply (Docket No. 51), in support of which it filed a Response to the Wahl's SUMF (Docket No. 52) and several exhibits, including the Supplemental Declaration of Danny Healy (Docket No. 51, Ex. 1), the MDL Court's CMO No. 3, and a legal brief filed by the plaintiffs in two other MDL cases ( Id., Ex. 4). The plaintiffs filed a Sur-Response (Docket No. 55), which attached a legal brief filed by the defendants in those two other MDL Cases. ( Id., Ex. 1.) [9]

On October 18, 2013, the court heard oral argument on the motion. ( See Docket No. 62, Transcript of Proceedings.) The court stated on the record that it would apply Tennessee choice of law rules in making its choice of law analysis. The court ordered the parties to file supplemental briefs as to whether, under Tennessee choice of law rules, Tennessee law or New Jersey law should apply to ...


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