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Havanick v. C. R. Bard, Inc.

United States District Court, S.D. West Virginia, Charleston Division

December 6, 2016

PENNY HAVANICK, Plaintiff,
v.
C. R. BARD, INC., Defendant.

          MEMORANDUM OPINION AND ORDER (DEFENDANT'S MOTION FOR SUMMARY JUDGMENT)

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE.

         Pending before the court is defendant C. R. Bard's (“Bard”) Motion for Summary Judgment [ECF No. 72]. As set forth below, Bard's Motion for Summary Judgment is GRANTED IN PART with respect to the plaintiff's claims for manufacturing defect, breach of implied warranty, breach of express warranty, and negligent inspection, packaging, marketing, and selling. Bard's Motion for Summary Judgment is DENIED IN PART with respect to the plaintiff's design defect and failure to warn claims.

         I. Background

         This case resides in one of seven MDLs assigned to me by the Judicial Panel on Multidistrict Litigation concerning the use of transvaginal surgical mesh to treat pelvic organ prolapse (“POP”) and stress urinary incontinence (“SUI”). In the seven MDLs, there are more than 58, 000 cases currently pending, approximately 8, 000 of which are in the Bard MDL, MDL 2187. In an effort to efficiently and effectively manage this massive MDL, I decided to conduct pretrial discovery and motions practice on an individualized basis so that once a case is trial-ready (that is, after the court has ruled on all Daubert motions and summary judgment motions, among other things), it can then be promptly transferred or remanded to the appropriate district for trial. To this end, I ordered the plaintiffs and defendant to each select 50 cases, which would then become part of a “wave” of cases to be prepared for trial and, if necessary, remanded. See Pretrial Order (“PTO”) # 102, No. 2:12-md-2187 [ECF No. 729]. This selection process was completed twice, creating two waves of 100 cases, Wave 1 and Wave 2. Ms. Havanick's case was selected as a Wave 2 case by the plaintiffs. PTO # 118, No. 2:12-md-2187 [ECF No. 841].

         Ms. Havanick was surgically implanted with the Align Urethral Support System (the “Align”) by Dr. Kenneth Blau at Danbury Hospital in Danbury, Connecticut. Am. Short Form Compl. ¶¶ 9-13 [ECF No. 237]. As a result of complications allegedly caused by the Align, Ms. Havanick brings the following claims against Bard: strict liability for design defect, manufacturing defect, and failure to warn; negligence; breaches of express and implied warranties; and punitive damages.[1] Id. at ¶ 14. In the instant Motion, Bard moves for partial summary judgment on a number of different grounds. See Mem. Supp. Mot. Summ. J. (“Mem. in Supp.”) [ECF No. 73].

         II. Legal Standards

         A. Summary Judgment

         To obtain summary judgment, the moving party must show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

         Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of a summary judgment motion. See Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997).

         B. Choice of Law

         Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in MDL cases such as this. The choice of law for these pretrial motions depends on whether they involve federal or state law. “When analyzing questions of federal law, the transferee court should apply the law of the circuit in which it is located. When considering questions of state law, however, the transferee court must apply the state law that would have applied to the individual cases had they not been transferred for consolidation.” In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (internal citations omitted). In cases based on diversity jurisdiction, the choice-of-law rules to be used are those of the states where the actions were originally filed. See In re Air Disaster at Ramstein Air Base, Ger., 81 F.3d 570, 576 (5th Cir. 1996) (“Where a transferee court presides over several diversity actions consolidated under the multidistrict rules, the choice of law rules of each jurisdiction in which the transferred actions were originally filed must be applied.”); In re Air Crash Disaster Near Chi., Ill., 644 F.2d 594, 610 (7th Cir. 1981); In re Digitek Prods. Liab. Litig., MDL No. 2:08-md-01968, 2010 WL 2102330, at *7 (S.D. W.Va. May 25, 2010).

         If a plaintiff files her claim directly into the MDL in the Southern District of West Virginia, however, as Ms. Havanick did in this case, I consult the choice-of-law rules of the state in which the plaintiff was implanted with the product. See Sanchez v. Boston Scientific Corp., 2:12-cv-05762, 2014 WL 202787, at *4 (S.D. W.Va. Jan. 17, 2014) (“For cases that originate elsewhere and are directly filed into the MDL, I will follow the better-reasoned authority that applies the choice-of-law rules of the originating jurisdiction, which in our case is the state in which the plaintiff was implanted with the product.”). Ms. Havanick received the implantation surgery for the Align in Connecticut. Thus, the choice-of-law principles of Connecticut guide this court's choice-of-law analysis.

         The parties agree, as does this court, that these principles compel application of Connecticut law. Connecticut typically follows the lex loci deliciti doctrine, which states “that the substantive rights and obligations arising out of a tort controversy are determined by the law of the place of injury.” O'Connor v. O'Connor, 519 A.2d 13, 15 (Conn. 1986). Connecticut courts have held that in situations where the lex loci deliciti doctrine would produce irrational results, courts should also consider the choice-of-law principles found in the Restatement (Second) of Conflict of Laws. Id. at 21-22 (“It is therefore our conclusion that we too should incorporate the guidelines of the Restatement as the governing principles for those cases in which application of the doctrine of lex loci would produce an arbitrary, irrational result.”). Under the Restatement (Second) analysis, “[i]n an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship.” Restatement (Second) of Conflict of Laws § 146 (1971). Here, the alleged wrong occurred in Connecticut, and Connecticut has the most significant relationship to the claims. Thus, under either analytical framework, I apply Connecticut's substantive law to the claims in this case.

         C. Connecticut Product Liability Act

         As an initial matter, Bard argues that Ms. Havanick's several claims should instead be treated as one single claim governed by the Connecticut Product Liability Act (the “CPLA”).[2] See Conn. Gen. Stat. Ann. § 52-572; see also Winslow v. Lewis-Shepard, Inc., 562 A.2d 517, 521 (Conn. 1989) (“The legislature clearly intended to make our products liability act an exclusive remedy for claims falling within its scope.”). The plaintiff does not contest that the CPLA governs her claims. Accordingly, each of the plaintiff's theories of recovery in this case will be deemed part of a single claim under the CPLA.

         III. Analysis

         Bard argues that it is entitled to partial summary judgment in this case because the plaintiff's claims lack evidentiary support. The plaintiff has agreed not to pursue manufacturing defect claims. Response 1 [ECF No. 134]. Accordingly, Bard's Motion for Summary Judgment on the plaintiff's claims for ...


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