United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (ETHICON' S MOTION
FOR SUMMARY JUDGMENT)
R. GOODWIN UNITED STATES DISTRICT
before the court is Ethicon's Motion for Partial Summary
Judgment [ECF No. 84]. As set forth below, Ethicon's
Motion is GRANTED in part and DENIED in part.
case resides in one of seven MDLs assigned to the court 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 28, 000 of
which are in Ethicon, Inc. and Johnson & Johnson, Inc.
(“Ethicon”) MDL, MDL 2327. In an effort to
efficiently and effectively manage this massive MDL, the
court 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
summary judgment Motions, among other things), it can then be
promptly transferred or remanded to the appropriate district
for trial. To this end, the court ordered the plaintiffs and
defendants to submit a joint list of 200 of the oldest cases
in Ethicon MDL that name only Ethicon, Inc., Ethicon, LLC,
and/or Johnson & Johnson. which would then become part of
a “wave” of cases to be prepared for trial and,
if necessary, remanded. See Pretrial Order No. 193,
In re Ethicon, Inc. Pelvic Repair Sys. Prods. Liab.
Litig., No. 2:12-md-002327, Aug. 19, 2015, available
I completed this process four times and selected the
plaintiff's case as a Wave 1 case.
December 23, 2010, Ms. Harter was surgically implanted with
Ethicon's Gynecare TVT-Obturator (“TVT-O”)
and Gynecare Prosima (“Prosima”), products
manufactured by Ethicon to treat SUI and POP, respectively.
Am. Short Form Compl. ¶¶ 9-10 [ECF No. 5]. Ms.
Harter's surgery occurred at Rockingham Memorial Hospital
in Harrisonburg, Virginia. Id. ¶ 11. Ms. Harter
claims that as a result of implantation of these devices she
has experienced multiple complications. She brought the
following claims against Ethicon: (I) negligence, (II) strict
liability - manufacturing defect, (III) strict liability -
failure to warn, (IV) strict liability - defective product,
(V) strict liability - design defect, (VI) common law fraud,
(VII) fraudulent concealment, (VIII) constructive fraud, (IX)
negligent misrepresentation, (X) negligent infliction of
emotional distress, (XI) breach of express warranty; (XII)
breach of implied warranty, (XIII) violation of consumer
protection laws, (XIV) gross negligence, (XV) unjust
enrichment, (XVI) loss of consortium,  (XVII) punitive
damages, and (XVIII) discovery rule and tolling. Id.
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. 1997).
Choice of Law
28 U.S.C. § 1407, this court has authority to rule on
pretrial Motions in MDL cases. The choice of law for these
pretrial Motions depends on whether they concern federal or
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
In re Temporomandibular Joint (TMJ) Implants Prods. Liab.
Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (internal
citations omitted). To determine the applicable state law for
a dispositive Motion, the court generally refers to the
choice-of-law rules of the jurisdiction where the plaintiff
first filed her claim. 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).
plaintiff files her claim directly into the MDL in the
Southern District of West Virginia, however, as Ms. Harter
did in this case, the court consults the choice-of-law rules
of the state where the plaintiff was implanted with the
product. See Sanchez v. Bos. Sci. Corp., No.
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, the court 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. Harter underwent the Prosima and TVT-O
implantation surgery in Virginia. Thus, the choice-of-law
principles of Virginia guide the court's choice-of-law
adheres to the principle of lex loci delicti for
tort actions: the place where the harm occurred provides the
substantive law. Vicente v. Obenauer, 736 F.Supp.
679, 690 (E.D. Va. 1990); see also Jones v. R. S. Jones
& Assoc., 246 S.E.2d 33, 34 (Va. 1993). As stated
above, Ms. Harter was implanted with the two products at
issue in Virginia. Thus, the court applies Virginia's
substantive law to this case.
argues it is entitled to summary judgment on all of Ms.
Harter's claims because her legal theories are either
without evidentiary or legal support. Mem. Supp. Mot. Summ.
J. 1 [ECF No. 84]. Ms. Harter agrees that this court should
dismiss several of the counts listed in her Amended Short
Form Complaint because they are not recognized by Virginia
law or because she is no longer pursing the cause of action.
Pl.'s Resp. Mem. Opp. Mot. Summ. J. 1 [ECF No. 96]. Ms.
Harter contends that only negligence (Count I), breach of
express warranty (Count XI), breach of implied warranty
(Count XII), fraud (Counts VI-VIII), and gross negligence
(Count XIV) survive the Motion. Id.
Ethicon's Motion with regard to all other claims is
GRANTED: negligent manufacturing (part of Count I); (Count
II) strict liability - manufacturing defect; (Count III)
strict liability - failure to warn; (Count IV) strict
liability - defective product; (Count V) strict liability -
design defect; (Count IX) negligent misrepresentation; (Count
X) negligent infliction of emotional distress; (Count XIII)
consumer protection; and (Count XV) unjust enrichment. Below,
the court applies the summary judgment standard to each
argues that all claims related to the design, manufacture,
sale, marketing, and implantation of the TVT-O should be
dismissed because there is no evidence in the record that the
TVT-O caused Ms. Harter any injuries or that the product was
defective or harmful. Def.'s Mem. 4.
Harter failed to respond to this argument. Additionally, Ms.
Harter's own expert, Dr. Galloway, testified that he did
not find any issues related to Ms. Harter's TVT-O in his
independent medical examination. Galloway Dep. 102:15-104:1,
Dec. 16, 2015 [ECF No. 85-5]. Ms. Harter has failed to show
any genuine dispute of material fact regarding whether or not
she was injured by the TVT-O.
Ethicon's Motion for Summary Judgment on all counts which
require proof of harm as to Ms. Harter's TVT-O claim is
GRANTED: (I) negligence, (VI) common law fraud, (VII)
fraudulent concealment, (VIII) constructive fraud, and (XIV)
other counts regarding the TVT-O, Ethicon's Motion is
DENIED: (XI) breach of express warranty and (XII) breach of
Negligent Failure ...