Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BINDER v. BRISTOL-MYERS SQUIBB

December 13, 2001

SANDRA J. BINDER, PLAINTIFF,
V.
BRISTOL-MYERS SQUIBB, CO., A CORPORATION, AND MEDICAL ENGINEERING CORPORATION, D/B/A SURGITECH, A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Morton Denlow, United States Magistrate Judge.

  MEMORANDUM OPINION AND ORDER

This case raises the issue of whether defendant, Bristol-Myers Squibb, Co. ("Defendant" or "BMS") is liable for the acts of Edward Week & Co. ("Weck") in distributing an alleged defective mammary prostheses implanted in plaintiff, Sandra J. Binder ("Plaintiff" or "Binder"). Defendant claims Plaintiff has not sued the correct defendant.

Because the Defendant has contested whether it has any liability, the parties have agreed to have this issue decided prior to dealing with the issues related to the merits. This case comes before the Court by means of a trial on the papers in which the parties have submitted trial briefs, affidavits and supporting exhibits which constitute the record in this case. See Morton Denlow, Trial on the Papers: An Alternative to Cross-Motions for Summary Judgment, Federal Lawyer, August 1999, at p. 30. See also, May v. Evansville-Vanderburgh Sch. Corp., 787 F.2d 1105, 1115-16 (7th Cir. 1986); Allen v. United Mine Workers of America, 726 F.2d 352, 353 (7th Cir. 1984); Acuff-Rose Music Inc. v. Jostens, Inc., 155 F.3d 140, 142 (2nd Cir. 1998); Nolan v. City of Chicago, 125 F. Supp.2d 324, 325 (N.D.Ill. 2000). The parties have agreed to proceed in this manner and to waive their right to present in court testimony. Oral argument was held on December 4, 2001.

Plaintiff has filed a four count Complaint against Defendants alleging: 1) unreasonably dangerous conditions, 2) negligence, 3) breach of implied warranty of merchantability, and 4) breach of implied warranty of fitness for a particular purpose. Plaintiffs allegations arise out of her claim that her breast implants caused her severe physical health problems.

The following constitute the Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. To the extent certain findings may be deemed to be conclusions of law, they shall also be considered conclusions. Similarly, to the extent matters contained in the conclusions of law may be deemed to be findings of fact, they shall be considered findings.

I. FINDINGS OF FACT

A. Parties

1. Plaintiff is a 54 year old woman who underwent breast augmentation surgery on July 13, 1970 receiving mammary prostheses in both breasts. (Pl. Resp. ¶ 1;*fn1 Def. Ex. A). Plaintiff is currently a resident of the State of Illinois and was a resident of the state of Illinois at the time the complaint was filed. (Def. Notice for Removal, ¶ 3).

2. BMS was created in 1988 after the merger of Bristol-Myers and E.R. Squibb & Sons ("Squibb"). (Def. Brief p. 1). At the time this action was commenced and at the present time, BMS was a Delaware corporation with its principal place of business in the State of New York. (Def. Notice of Removal, ¶ 4). Medical Engineering Corporation d/b/a Surgitech ("MEC") was a Delaware corporation with its principal place of business in the State of Wisconsin both at the time this action was commenced and at the present time. (Id. at ¶ 5).

B. Breast Implants

3. Plaintiff underwent surgery and was implanted with mammary prostheses on July 13, 1970. (Pl. Resp. ¶ 1; Def. Ex. A). Dr. Greenburg, the assisting surgeon, described the implants as "Weck prostheses" in Plaintiffs chart. (Def.Ex. A). These implants are at issue in this case.

4. On May 28, 1993, Plaintiff underwent surgery to remove both prostheses and immediately received new saline implants to replace those that were explanted. (Def.Ex. B). The 1993 implants are not at issue in this case.

5. Dr. Michael Middleton, MD, a radiologist at UC San Diego and Plaintiffs product identification expert examined the original implants. (Def.Ex. C). Dr. Middleton, in a report dated April 22, 1997, concluded plaintiffs original prostheses were most probably manufactured by Polyplastic Silicone Products, Inc. ("Polyplastic"). (Id.).

6. Dr. Pierre Blais, an expert on the history and composition of the breast implant industry, also examined Plaintiffs original implants. (Def.Ex. D). In Dr. Blais' report dated March 1, 2001, he opined that Plaintiff received "Ashley" Natural Y implants and also believed them to be manufactured by Polyplastic. (Def.Ex. D). Dr. Blais also explained the connection between Polyplastic and Week. In the late 1960's, Polyplastic struck distribution agreements with Weck, who had responsibility for labeling, marketing and post-market follow up. (Def.Ex. D, p. 2). The implant was then known as the "Weck Natural-Y Mammary Prosthesis." (Id.).

C. Corporate Time Line

7. At the time of the implant in 1970, Week was a wholly-owned subsidiary of Standard International Corp. ("Standard"). (Def.Ex. D, p. 16).

8. On February 17, 1971, Squibb initiated the acquisition of Weck from Standard, Weck's parent corporation. (Def. Ex. F; Def. Ex. G). The parties to the Stock Agreement (Def.Ex. F) included Squibb; Squibb Beech-Nut; ERS, Inc. (the "Squibb Subsidiary"); Weck; and Standard. (Def.Ex. F, p. 1).

9. On February 17, 1971, an Agreement and Plan of Merger (Def.Ex. G) was entered into between the Squibb Subsidiary and Weck providing for the merger of the Squibb Subsidiary with and into Weck. (Def.Ex. G, p. 1).

10. On February 24, 1971, Squibb assigned its rights under the Stock Agreement to Squibb Beech-Nut. (Pl.Ex. A).

11. The merger of the Squibb Subsidiary into Week became finalized on May 26, 1971. (Def.Ex. G, p. 17-20). Thus, Week became the wholly-owned subsidiary of Squibb.

12. In 1988, Bristol-Myers and Squibb merged creating BMS. (Def. Brief p. 6).

13. In 1993, Week entered into an Asset Purchase Agreement with Teleflex Incorporated ("Teleflex"). (Def.Ex. L).

14. Week continues to exist under the new name of EWI Corporation ("EWI"); however, Teleflex operates Week's prior business through a subsidiary known as Pilling-Weck. (Def. Brief, p. 6; Def. Ex. I, J). Presently, EWI is duly incorporated under the laws of the State of Delaware, is in good standing, and has a legal corporate existence. (Def.Ex. K).

15. At the time Plaintiff received her implants, Week was not a subsidiary of Squibb, Squibb Beech-nut, Bristol-Myers, or any related company. (Pl.Resp. ¶¶ 4). Furthermore, any liability of these entities arises from the actions of Week in distributing and selling the original implants. (Pl.Resp. ¶¶ 3).

D. Stock Agreement

16. On February 17, 1971, Squibb, Squibb Beech-Nut, the Squibb Subsidiary, Week, and Standard entered into a Stock Agreement setting forth representations, warranties, and agreements which each of these respective corporations made in connection ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.