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Fourth Circuit Confirms it is Not the Courtís Responsibility to Comb the Record for Evidence of Proximate Cause

Carlson v. Boston Scientific Corp.
2017 WL 1854278 (Fourth Circuit Court of Appeals, May 9, 2017)

by Marie Claire Langlois, Law Clerk
Semmes, Bowen & Semmes (

Available at:

Martha Carlson was a patient to Dr. Kennelly, who prescribed implantation of transvaginal mesh manufactured by the appellee, due to Ms. Carlson’s pelvic organ prolapse and stress urinary incontinence. Ms. Carlson joined a Multidistrict Litigation (“MDL”), in the United States District Court for the Southern District of West Virginia, where she asserted various product liability claims, including the failure to adequately warn.

Appellee moved for summary judgment in the MDL court, who granted the motion as to the failure to warn claim, but allowed the remaining claims to proceed. Although Ms. Carlson had submitted excerpts from Dr. Kennelly’s testimony to prove the provided warnings were inadequate, and submitted her own affidavit stating that she would not have gotten the mesh had she known of the potentially detrimental life-changing results, she failed to cite to any evidence showing proximate cause. She never showed that Dr. Kennelly had read, or in any way relied on, the provided warnings, therefore, failing to prove that a more thorough warning would have prevented prescription or acceptance of the mesh implant.

With the failure to warn claim dismissed, the MDL court transferred the case to the District Court for the Western District of North Carolina. Pursuant to Federal Rule of Civil Procedure 54(b), Ms. Carlson moved for reconsideration of the interlocutory dismissal on her failure to warn claim.

In support of her motion, Ms. Carlson once again presented excerpts from Dr. Kennelly’s testimony, but this time, proffered additional excerpts showing that Dr. Kennelly was familiar with and reviewed the manufacturer’s warnings prior to implanting the mesh, which she failed to cite during the MDL hearing. The District Court denied her motion for lack of proximate cause because it believed, despite analysis of the additional excerpts, that Dr. Kennelly’s professional opinion remained that the mesh was her best choice of treatment. The remaining claims were denied by the jury.

Mr. Carlson timely appealed to the Fourth Circuit, challenging the MDL court’s ruling on summary judgment, and the District Court’s ruling on the motion to reconsider. In affirming both rulings, the Fourth Circuit did not focus on the substance of Dr. Kennelly’s testimony, but instead, focused on the Federal Rules of Civil Procedure.

In emphasizing a lawyer’s responsibility to present all evidence available to him at the time of summary judgment, the Fourth Circuit stated:

“Appellant argues that we should consider this newly submitted evidence in reviewing not just the district court’s ruling on the motion for reconsideration but also the MDL court’s summary judgement ruling. In doing so, Appellant asks us to completely disregard the Federal Rules of Civil Procedure governing summary judgement practice. . . .The responsibility to comb through the record in search of facts relevant to summary judgment falls on the parties—not the court. . . . [Moreover,] [w]e have consistently affirmed denials of motions to reconsider summary judgment rulings where the motion is merely a vessel for the very evidence that was initially lacking in opposition for summary judgment. [] The entirety of Dr. Kennelly’s deposition testimony was available well before summary judgment briefing.” (internal citations omitted, emphasis added.)