Heinrich v. Ethicon, Inc. ( 2023 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 Barbara Heinrich and Gregory Heinrich, Case No. 2:20-cv-00166-CDS-VCF 6 Plaintiffs Order Regarding Jury Instructions 7 v. 8 Ethicon, Inc.; Johnson & Johnson, 9 Defendants 10 11 This is a products-liability action. The upcoming trial has been bifurcated to first have a 12 jury decide the statute-of-limitations issue; liability will be determined in a second trial at a later 13 date, if necessary. The first part of the bifurcated trial will begin on February 13, 2023. Each 14 party filed their proposed jury instructions on February 2, 2023. ECF Nos. 209, 211, 212, 213. Two 15 jury instruction issues have arisen. 16 First, the parties disagree on the form and delivery of Rule 2.4 (depositions in lieu of live 17 testimony). I will follow the 2017 model rule regarding depositions. As recommended in the 18 Rule’s comment, I will give the instruction before the first deposition is read. See comment, 2017 19 Rule 2.4 Ninth Circuit Civil Jury Instructions (“The Committee recommends that it be given 20 immediately before a deposition is to be read. It need not be repeated if more than one 21 deposition is read.”).1 22 23 24 25 26 1 If any deposition-related issues arise during the course of the trial, either party may lodge an objection, and it will be addressed accordingly. 1 Second, the parties disagree about how the statute-of-limitations jury instruction— 2 namely regarding the “discovery rule,” or “accrual”—should read. Plaintiffs propose the 3 following instruction: 4 In the context of a surgical procedure, the discovery of facts constituting a product liability claim must be both of the damage suffered and the realization 5 that the cause was a defect in a product. A bad outcome or serious post-surgical complications does not necessarily require a finding that a plaintiff should have 6 known that a product defect caused her damage. 7 ECF No. 209 at 7. Defendants object to the instruction insofar as it states that “plaintiff should 8 have known that a product defect caused her damage,” arguing that the following is the correct 9 standard: “the claim accrued when Barbara Heinrich knew or should have known facts 10 connecting her injury to the product (the TVT-Secur).” ECF No. 214 at 3 (citing Heinrich, 2021 11 WL 2801961, at *1; (citing G & H Assocs. v. Ernest W. Hahn, Inc., 934 P.2d 229, 233 (Nev. 1997) (in a 12 tort action, the limitations period does not commence “until the aggrieved party knew, or 13 reasonably should have known, of the facts giving rise to the damage or injury.”)). Defendants 14 further argue that this instruction includes “inquiry notice” because it “constitutes another way 15 for [plaintiffs’] claims to accrue under the discovery rule.” ECF No. 214 at 3–4. 16 It is well established that a “cause of action accrues when the wrong occurs and a party 17 sustains injuries for which relief could be sought.” Petersen v. Bruen, 792 P.2d 18, 20 (1990). 18 “Statutes of limitation . . . do not commence and the cause of action does not ‘accrue’ until the 19 aggrieved party knew, or reasonably should have known, of the facts giving rise to the damage or 20 injury.” G & H Assocs., 934 P.2d at 233 (citing Nev. State Bank v. Jamison P’ship, 801 P.2d 1377, 1382 21 (Nev. 1990)); Petersen, 792 P.2d at 20 (same). Nevada’s discovery rule tolls the statutory period of 22 limitations “until the injured party discovers or reasonably should have discovered facts supporting a 23 cause of action.” Id. (emphasis added). Thus, “a plaintiff must use due diligence in determining 24 the existence of a cause of action.” Bemis v. Estate of Bemis, 967 P.2d 437, 440 (Nev. 1998) (citing 25 Sierra Pacific Power Co. v. Nye, 389 P.2d 387 (Nev. 1964)) (determining when the statute of 26 limitations ran by applying the inquiry-notice standard). 1 In Winn v. Sunrise Hosp. & Med. Ctr., the Nevada Supreme Court determined that “inquiry 2 notice” occurs when a plaintiff “should have known of facts that ‘would lead an ordinarily 3 prudent person to investigate the matter further.’” Winn v. Sunrise Hosp. & Med. Ctr., 277 P.3d 458, 4 462 (Nev. 2012) (quoting Black’s Law Dictionary 1165 (9th ed. 2009)). In the Winn decision, the 5 Nevada Supreme Court also held that factual knowledge “need not pertain to precise legal 6 theories the plaintiff may ultimately pursue, but merely to the plaintiff’s general belief that 7 someone’s negligence may have caused his or her injury.” Id. 8 Nevada’s 2018 Pattern Civil Jury Instructions on causation reads as follows: “A legal 9 cause of injury, damage, loss[,] or harm is a cause which is a substantial factor in bringing about 10 the injury, damage, loss[,] or harm. Evidence of an unexpected, dangerous malfunction gives rise 11 to an inference of a manufacturing defect. Therefore, the malfunctioning of a product is 12 circumstantial evidence of a defective condition in spite of the lack of evidence of any specific 13 defect in the product.” Nev. Pattern. Civ. Jury Inst. 7.10 (2018). The source/authority for that 14 instruction explains that the “purpose behind allowing circumstantial evidence to support the 15 existence of a defective condition is that it is too burdensome to require a plaintiff to prove the 16 precise, technological reason for why a product does not work, specifically in cases involving 17 electronic and mechanical equipment.” Nev. Contract Servs., Inc. v. Squirrel Cos., Inc., 68 P.3d 896, 899 18 (Nev. 2003) (breach-of-warranty issue). It also cites to Stackiewicz v. Nissan Motor Corp. in U.S.A., 19 686 P.2d 925, 929 (1984), a defective product case, in which the Nevada Supreme Court held 20 that requiring a plaintiff to prove the specific cause of a product defect or to negate alternative 21 causes in order to establish that a product is defective is far too restrictive. Thus, under Nevada 22 law, a plaintiff need not know the specific cause of a product defect to establish defectiveness. 23 Applying that reasoning, plaintiffs’ proposed instruction is contrary to Nevada law. 24 Plaintiffs want to instruct the jury that the discovery period began when Barbara Heinrich 25 learned that it was, in fact, the TVT-Secur that caused her injury. But that is far too specific. 26 Nevada’s requirement is only that a plaintiff have evidence of the existence of a defective condition to bring a claim, or that the plaintiff bring a claim when she discovers or reasonably should have discovered facts supporting a cause of action. G & H Assocs, 934 P.2d at 233. 3 Accordingly, I anticipate giving the following instructions: 4 A plaintiff “discovers” her injury when she possesses facts that would lead an ordinarily prudent person to know what caused her injuries, or to have investigated—using reasonable 5 diligence—what caused her injury. As the trier of fact, you must determine, by a preponderance of the evidence, if the 6 plaintiff discovered or should have discovered her claims more than two years before July 8, 2013. 7 The remaining jury instructions will be resolved at the charge conference at the 8|| conclusion of the presentation of evidence. 9 SO ORDERED. 10 /) DATED: February 9, 2023 V4 Cristi {a/). Silva B United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26