United States District Court, S.D. West Virginia, Charleston Division
December 6, 2016
JANET GREEN, et al., Plaintiffs,
C. R. BARD, INC., Defendant.
MEMORANDUM OPINION AND ORDER (DEFENDANTâS MOTION FOR
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is defendant C. R. Bard's
(“Bard”) Motion for Summary Judgment [ECF No.
48]. 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, and breach of express warranty.
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.
Green's case was selected as a Wave 2 case by the
plaintiffs. PTO # 118, No. 2:12-md-2187 [ECF No. 841].
Green was surgically implanted with the Avaulta Solo Anterior
Synthetic Support system (the “Avaulta”) by Dr.
Kent Haggard and Dr. Kelly Nichols at St. Luke's North
Hospital North in Kansas City, Missouri. Am. Short Form
Compl. ¶¶ 10-13 [ECF No. 6]. As a result of
complications allegedly caused by the Avaulta, Ms. Green
brings 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 ¶ 14.
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. 49].
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. Green received the implantation surgery
for the Avaulta in Missouri. Thus, the choice-of-law
principles of Missouri guide this court's choice-of-law
that these principles compel application of Missouri law. For
tort claims, “Missouri courts apply the
most-significant-relationship test as defined in the
Restatement . . . Under this test, the identity of the state
having the most significant relationship will depend upon the
nature of the cause of action and upon the particular legal
issue in dispute.” Dorman v. Emerson Elec.
Co., 23 F.3d 1354, 1358 (8th Cir. 1994) (internal
citations omitted). “[T]he rights and liabilities of
the parties will be determined by the law of the state with
the most significant relationship to the accident and the
parties.” Id. (citing Restatement (Second) of
Conflict of Laws § 145 (1971). Here, Ms. Green was
implanted with the device at issue in Missouri, and the
plaintiffs are both residents of Missouri. Accordingly, as
the parties agree, I find that the plaintiffs' claims are
governed by Missouri law.
argues that it is entitled to partial summary judgment
because the plaintiffs lack evidentiary support on the
following claims: failure to warn on both theories of
negligence and strict liability, manufacturing defect on both
theories of negligence and strict liability, breach of
express warranty, and breach of implied warranty. The
plaintiffs have agreed not to pursue claims for manufacturing
defect, breach of express warranty, and breach of implied
warranty. See Response 5-7, 9 [ECF No. 104].
Accordingly, Bard's Motion on the plaintiffs' claims
for manufacturing defect, under theories of strict liability
and negligence, breach of express warranty, and breach of
implied warranty are GRANTED. Below, I apply
the summary judgment standard to the plaintiffs' failure
to warn claims.
Failure to Warn
Missouri law, “[t]he elements of a cause of action for
strict liability failure to warn are: (1) the defendant sold
the product in question in the course of its business; (2)
the product was unreasonably dangerous at the time of sale
when used as reasonably anticipated without knowledge of its
characteristics; (3) the defendant did not give adequate
warning of the danger; (4) the product was used in a
reasonably anticipated manner; and (5) the plaintiff was
damaged as a direct result of the product being sold without
an adequate warning.” Moore v. Ford Motor Co.,
332 S.W.3d 749, 756 (Mo. 2011).
“[although negligence and strict liability theories are
separate and distinct, the same operative facts may support
recovery under either…particularly in a failure to
warn case.” Hill v. Air Shields, Inc., 721
S.W.2d 112, 118 (Mo. App. 1986).
The elements of a claim for failure to warn based in
negligence are: (1) the defendant designed the product at
issue; (2) the product did not contain an adequate warning of
the alleged defect or hazard; (3) the defendant failed to use
ordinary care to warn of the risk of harm from the alleged
defect or hazard; and (4) as a direct result of the
defendant's failure to adequately warn, the plaintiff
Moore, 332 S.W.3d at 764.
There are two aspects of proving causation in a failure to
warn case. First, of course, the plaintiff must show
causation in fact by showing that the product for which there
was no warning caused the injuries . . . Second, the
plaintiff must show proximate cause. To do this,
“plaintiffs must show that a warning would have altered
the behavior of the individuals involved in the
Id. at 761-62 (quoting Arnold v. Ingersoll-Rand
Co., 834 S.W.2d 192, 194 (Mo. 1992)).
Missouri applies the learned intermediary doctrine. See,
e.g., Doe v. Alpha Therapeutic Corp., 3 S.W.3d 404, 419
(Mo. App. E.D. 1999); Joyce v. Davol, Inc., 2016 WL
775183, *4 (E.D. Mo. Feb. 29, 2016). Under the doctrine,
“the manufacturer of prescription drugs or products
discharges its duty to warn by providing the physician with
information about risks associated with those
products.” Alpha Therapeutic, 3 S.W.3d at 419.
Thus, under the doctrine, if the implanting physician was
adequately warned about the risks associated with the drug or
product, there is no proximate cause between any alleged
failure to warn and the plaintiffs' injuries.
Id. at 420.
argues that it is entitled to summary judgment on the
plaintiffs' failure to warn claims because the plaintiffs
cannot put forth proof of causation. According to Bard, Dr.
Haggard testified that there is no new information that he
had seen as of his deposition that would cause him to change
anything about Ms. Green's Avaulta implantation.
See Mem. in Supp. 18-20. However, the plaintiffs
contend that Bard is misrepresenting Dr. Haggard's
testimony. See Response 8-9. According to the
plaintiffs, Dr. Haggard testified that he was not aware of
many risks that the plaintiffs allege that he should have
been. Consequently, according to the plaintiffs, Dr. Haggard
was not able to adequately warn the plaintiffs given that he
was not adequately warned himself. Id.
review of the plaintiffs' arguments and Dr. Haggard's
testimony demonstrates that genuine disputes exist with
regard to whether Bard's warning was adequate, and
whether the alleged inadequate warning proximately caused the
alleged harm to the plaintiffs. Therefore, Bard's Motion
on the plaintiffs' claims for both strict liability
failure to warn and negligent failure to warn are
reasons discussed above, it is ORDERED that
Bard's Motion [ECF No. 48] is GRANTED IN
PART with respect to the plaintiffs' claims for
manufacturing defect, breach of implied warranty, and breach
of express warranty. Bard's Motion is DENIED IN
PART with respect to the plaintiffs' claims for
strict liability failure to warn and negligent failure to
Court DIRECTS the Clerk to send a copy of
this Order to counsel of record and any unrepresented party.
 Bard also filed a Motion for Partial
Summary Judgment on Punitive Damages Claims [ECF No. 50].
That motion is addressed in a separate order.