United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT)
R. GOODWIN, UNITED STATES DISTRICT JUDGE
before the court is the defendants' Motion for Summary
Judgment [ECF No. 61]. As set forth below, the
defendants' 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 the 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 the Ethicon MDL that name only Ethicon, Inc., Ethicon,
LLC, and/or Johnson & Johnson. These cases became 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 selection process four times and selected
the plaintiff's case as a Wave 1 case.
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).
case was originally filed in the Central District of
California. Therefore, I use California's choice-of-law
rules to determine which state's law to apply to this
case. California courts apply a three-step governmental
interest approach to resolve choice-of-law disputes.
Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914,
922 (Cal. 2006); Hurtado v. Super. Ct., 522 P.2d
666, 669 (Cal. 1974). Under the first step, the court should
determine whether the laws of each potential jurisdiction
actually differ. Kearney, 137 P.3d at 922. Second,
where the laws of each jurisdiction differ, the court must
determine whether a “true” conflict exists by
determining whether each state has an interest in applying
its law in this case. Id. Finally, if a true
conflict exists, the court will determine “which
state's interest would be more impaired if its policy
were subordinated to the policy of the other state” and
apply that state's law. Id. (quoting
Bernhard v. Harrah's Club, 546 P.2d 719, 723
the first step, whether the laws of California and Utah
actually differ, both California and Utah provide a two-year
statute of limitations for the plaintiff's claim. Cal.
Civ. Proc. Code § 335.1; Utah Code Ann. §
78B-6-706. Both states apply a discovery rule to determine
the date of accrual; however, those discovery rules differ in
both scope and application. Utah states that an action
“shall be brought within two years from the time the
individual who would be the claimant in the action
discovered, or in the exercise of due diligence should have
discovered, both the harm and its cause.” Utah
Local Gov't Tr. v. Wheeler Mach. Co., 199 P.3d 949,
951 (Utah 2008). California's discovery rule is satisfied
when “the plaintiff learns, or should have learned, the
facts essential to his claim.” Fox v.
Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920 (Cal.
2005) (quoting Gutierrez v. Mofid, 705 P.2d 886, 889
(Cal. 1985)). “Suspicion of one or more of the elements
of a cause of action, coupled with ...