Products Liability Law Reporter

Salinero v. Johnson & Johnson, 2019 WL 4585215 (S.D. Fla. Sept. 20, 2019).

A federal district court held that Johnson & Johnson (J&J) was not liable to a patient allegedly injured by Artisyn Mesh, a product that is designed and manufactured by Ethicon, Inc., J&J’s wholly owned subsidiary.

Charlotte Salinero sued J&J and Ethicon, Inc., alleging liability for alleged defects in the Artisyn Mesh product. J&J moved to dismiss, arguing that it does not design, manufacture, or sell any product, including Artisyn Mesh.

Granting the motion, the district court noted a parent may be held liable for the acts of its subsidiaries under an alter ego theory, under vicarious liability principles, or where the parent directly participated in the alleged wrong. The court declined to find direct liability on J&J’s part, noting an absence of case law finding upstream liability for a parent that indirectly profits from a product sale only because it owns the subsidiary product designer. Additionally, the court found that the plaintiff’s evidence shows not that J&J owed or breached a duty of care in the design of Artisyn Mesh, but that Ethicon and other entities were directly and intimately involved with the product and its design.

Citing case law, the court found that Florida law allows a party to pierce the corporate veil and hold a parent corporation liable for the actions of its subsidiary where the subsidiary is a “mere instrumentality” of the parent and the parent engaged in improper conduct. The plaintiff has not offered proof of these two elements, the court said, noting that to the contrary, J&J has provided evidence showing the separate nature of Ethicon. Finally, the court held that the plaintiff has not proffered evidence proving the level of control necessary for agency liability.

Consequently, the court dismissed J&J from the plaintiff’s lawsuit.

Comment: In Gonzales v. Ethicon Corp., Inc., 2019 WL 4306352 (D.N.J. Sept. 11, 2019), Domingo Gonzales was diagnosed as having an inguinal hernia. In April 2011, he was implanted with a Prolene Hernia System Patch. Following the surgery, he suffered chronic abdominal pain and multiple infections. The hernia repair system was removed in February 2017. Gonzales sued J&J and Ethicon Corp. in December 2018, alleging negligence, strict products liability, breach of warranty, and consumer protection violations. The defense moved to dismiss the plaintiff’s complaint on limitations and other grounds. Applying New Jersey law, the trial court noted that a two-year limitations period applies to personal injury and products liability claims in the state. Citing case law, the court noted that application of the discovery rule—which the New Jersey Supreme Court has adopted—depends on whether the facts as presented would have alerted a reasonable person to the fact that he or she was injured. Here, the court found, it is unclear whether Gonzales knew or should have known sufficient facts to trigger the running of the limitations statute on his personal injury and products liability claims. Thus, the court held that dismissal of those claims was not warranted and that any limitations issue is better addressed after discovery. Regarding the breach of implied warranty claim, however, the court concluded that such a cause of action accrues when the product is delivered, regardless of the purchaser’s level of knowledge. Applying this principle here, the court held that the plaintiff’s warranty claims accrued in April 2011 on the day of his implant surgery. Those claims, filed seven years later, are thus dismissed. Nicholas R. Farnolo, Melville, N.Y., represented the plaintiff.