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WALUS v. PFIZER

January 22, 1993

ROBERT WALUS, et al., Plaintiffs,
v.
PFIZER, INC., et al., Defendants.



The opinion of the court was delivered by: CLARKSON S. FISHER

 FISHER, District Judge

 Before the court is a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure by defendants, Pfizer, Inc. ("Pfizer") and Shiley, Inc. ("Shiley"), for an order granting summary judgment in their favor on plaintiffs' complaint. The court has considered the parties' written submissions and oral argument. For the reasons set forth below, defendants' motion is granted.

 Facts

 This is an action involving a prosthetic heart valve manufactured by Shiley that was implanted in plaintiff Robert Walus's heart in October 1982 to replace his failing human aortic heart valve. Dep. of Robert Walus, T41:13-24. As Robert Walus admits, his valve is and has been "working normally." Dep. of R.W., T48:13-15. A cardiologist, Dr. Weisfogel, *fn1" who has examined plaintiff every three or four months since the surgery, has confirmed that the valve is "working normally." Dep. of R.W., T48:2-12.

 On or about January 1991, Robert Walus saw a "World in Action" television program on the Arts & Entertainment Network about Shiley heart valves which "shook [him] up." Dep. of R.W., T72:11 to T75:19. The program reported that a very small percentage of the valves had fractured. Pls.' Br. in Opp'n Ex. B at 2. *fn2" Plaintiff incorrectly understood the program to say that the valves had a failure rate of sixty to seventy percent. Dep. of R.W., T80:10 to TS1:11. Plaintiff taped the program and has watched it several times. Dep. of R.W., T75:20 to T76:10.

 Dr. Weisfogel has encouraged plaintiff not to worry about the valve's fracturing. Dep. of Diane Walus, T152:7-19. A surgeon, Dr. Alan J. Spotnitz, wrote to advise plaintiff that the risk of fracture is "very low" and that there is "no reason for [him] to be unduly alarmed at this point." See Defs.' Br. in Supp. Ex. B. The letter also stated that the risk of fracture "is lower by a significant amount than other potential complications such as infection, stroke, or bleeding from blood-thinners." Id.

 The same advice was repeated in a subsequent letter to plaintiff's attorney. Id. Ex. C. In that letter, Dr. Spotnitz expressed his regret that plaintiff has not given him "the opportunity to reassure him of some of the fears he seems to have regarding having this valve in place." Id.

 Plaintiffs, Robert Walus and Diane Walus, brought suit on or about June 17, 1992, in the Superior Court of New Jersey, Law Division, Somerset County, in eleven counts. See Pls.' Compl. Plaintiffs assert the theories of negligence, strict liability, failure to warn, fraud, misrepresentation and negligent and intentional infliction of emotional distress. Id. Robert Walus's wife, Diane, sues to recover for loss of consortium. Id.

 On or about August 10, 1992, defendants filed a notice of removal to this court pursuant to 28 U.S.C. § 1441(a), basing jurisdiction on diversity of citizenship and an amount in controversy exceeding $ 50,000.00 pursuant to 28 U.S.C. § 1332. Defendants then filed a motion for summary judgment, which is the subject of this opinion. Defendants assert that, inasmuch as plaintiff's valve has been working correctly since it was implanted, plaintiffs have no valid cause of action against them, as they have not suffered a legally cognizable injury.

 Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Brown v. Hilton, 492 F. Supp. 771, 774 (D.N.J. 1980). The burden of showing that no genuine issue of material fact exists rests initially on the moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). This "burden . . . may be discharged by 'showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once a properly supported motion for summary judgment is made, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 There is no issue for trial unless the nonmoving party can demonstrate that there is sufficient evidence favoring the nonmoving party so that a reasonable jury could return a verdict in that party's favor. Anderson, 477 U.S. at 249. In deciding a motion for summary judgment, the court must construe the facts and inferences in a light most favorable to the nonmoving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court, however, is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

 The New Jersey Products Liability Act ("NJPLA") governs plaintiffs' claims. N.J.S.A. § 2A:58C-1 et seq. The NJPLA "applies to 'product liability actions filed on or after the date of enactment,'" July 22, 1987. Tirrell v. Navistar Int'l, Inc., 248 N.J. Super. 390, 398, 591 A.2d 643 (App. Div.), certif. denied, 126 N.J. 390 (1991). A "product liability action" is defined as "any claim or action brought by a claimant for harm caused by a product, irrespective of the theory ...


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