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.
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).
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.).
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).
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 ...