United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT)
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is defendant C. R. Bard's
(“Bard”) Motion for Partial Summary Judgment [ECF
No. 44]. As set forth below, Bard's Motion for Summary
Judgment is GRANTED IN PART with respect to
the plaintiffs' 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 plaintiffs' strict
liability and negligent failure to warn claims.
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.
Rodenkirch-Kleindl's case was selected as a Wave 1 case
by the plaintiffs. PTO # 118, No. 2:12-md-2187 [ECF No. 841].
Rodenkirch-Kleindl was surgically implanted with the Align
Urethral Support System (the “Align”) by Dr.
Kenneth Ostermann at the Beaver Dam Community Hospital in
Beaver Dam, Wisconsin. Am. Short Form Compl. 4 [ECF No. 28].
As a result of complications allegedly caused by the Align,
the plaintiffs bring the following claims against Bard:
strict liability for design defect, manufacturing defect, and
failure to warn; negligence; breaches of express and implied
warranties; loss of consortium; and punitive
damages. Id. at 5. In the instant motion,
Bard moves for partial summary judgment on the grounds that
the plaintiffs' claims are without evidentiary support.
Bard's Mem. Supp. Mot. Summ. J. 1 (“Mem. in
Supp.”) [ECF No. 45].
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).
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.
Choice of Law
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,
plaintiff files her claim directly into the MDL in the
Southern District of West Virginia, however, as the
plaintiffs 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. Rodenkirch-Kleindl received the
implantation surgery for the Align in Wisconsin. Thus, the
choice-of-law principles of Wisconsin guide this court's
that these principles compel application of Wisconsin law.
For tort claims, Wisconsin's choice of law methodology
“begins with a presumption that the law of the forum
applies unless ‘nonforum contacts are of the greater
significance.'” Assembly Component Sys., Inc.
v. Platinum Equity, L.L.C., No. 09-CV-778, 2010 WL
2719978, at *6 (E.D. Wis. July 7, 2010) (quoting Glaeske
v. Shaw, 661 N.W.2d 420, 427 (Wis. App. 2003)). The
methodology then “ends with an analysis of five
‘choice influencing factors': predictability of
results, maintenance of interstate and international order,
simplification of the judicial task, advancement of the
forum's governmental interests, and application of the
better rule of law.” Id. Here, given the
presumption in favor of the law of the forum, and that there
is no indication that any of the five factors would weigh
against applying Wisconsin law, I find that the tort claims
are governed by Wisconsin law.