United States District Court, S.D. West Virginia, Charleston Division
December 19, 2016
DEBRA HARTZO, et al., Plaintiffs,
C. R. BARD, INC., Defendant.
MEMORANDUM OPINION AND ORDER (Defendant's Motion
for Summary Judgment)
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court are defendant C. R. Bard's
(“Bard”) Motion for Partial Summary Judgment [ECF
No. 53] and Bard's Motion for Partial Summary Judgment on
Punitive Damages [ECF No. 55]. As set forth below, Bard's
Motion for Partial Summary Judgment [ECF No. 53] is
GRANTED as it pertains to the
plaintiffs' claims for manufacturing defect, breach of
implied warranty, breach of express warranty, negligence, and
failure to warn. Additionally, Bard's Motion for Partial
Summary Judgment on Punitive Damages [ECF No. 55] is
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.
Hartzo's case was selected as a Wave 2 case by the
plaintiffs. PTO # 118, No. 2:12-md-2187 [ECF No. 841].
Hartzo was surgically implanted with the Align TO Urethral
Support System (the “Align”) by Dr. James
Robertson at WK Bossier Health Center in Bossier City,
Louisiana. Am. Short Form Compl. ¶¶ 9-13 [ECF No.
27]. 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 ¶ 14. Bard moves for partial
summary judgment on the grounds that the plaintiffs'
claims are either without evidentiary support or not
cognizable under Louisiana law. Mem. Supp. Mot. Summ. J. 1
[ECF No. 54].
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., III., 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 Ms. Hartzo
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., 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, 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. Hartzo received the implantation
surgery for the Align in Louisiana. Thus, the choice-of-law
principles of Louisiana guide this court's choice-of-law
parties agree that these principles compel application of
Louisiana law. Under Louisiana law, a tort claim “is
governed by the law of the state whose policies would be most
seriously impaired if its laws were not applied” to the
claim. La. Civ. Code Ann. art. 3542 (listing factors such as
place of injury, residence of parties, and nature of
relationship between parties to determine the appropriate
state law). The plaintiffs are residents of Louisiana, Ms.
Hartzo was implanted with the product at issue in Louisiana,
and her alleged injuries and follow-up care occurred in
Louisiana. Accordingly, I will apply Louisiana's
substantive law to the claims in this case.
Claims Not Cognizable Under the LPLA
the Louisiana Products Liability Act (“LPLA”),
“[t]he manufacturer of a product shall be liable to a
claimant for damage proximately caused by a characteristic of
the product that renders the product unreasonably
dangerous.” La. Stat. Ann. § 9:2800.54.
product is “unreasonably dangerous” under the
(1) The product is unreasonably dangerous in construction or
composition as provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as
provided in R.S. 9:2800.56;
(3) The product is unreasonably dangerous because an adequate
warning about the product has not been provided as provided
in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does not
conform to an express warranty of the manufacturer . . . .
LPLA provides the “exclusive theories of liability for
manufacturers for damage caused by their products.”
Grenier v. Med. Eng. Corp., 99 F.Supp.2d 759, 761
(W.D. La. 2000); see also Jefferson v. Lead Indus.
Ass'n, Inc., 930 F.Supp. 241, 245 (E.D. La. 1996),
aff'd, 106 F.3d 1245 (5th Cir. 1997)
(“While the statutory ways of establishing that a
product is unreasonably dangerous are predicated on
principles of strict liability, negligence, or warranty,
respectively, neither negligence, strict liability, nor
breach of express warranty is any longer viable as an
independent theory of recovery against a
manufacturer.”). Accordingly, the plaintiffs' claim
of negligence, Master Compl. ¶¶ 62-67, No.
2:10-md-2187 [ECF No. 199], cannot be maintained under the
LPLA. Id.; see also Automatique New Orleans,
Inc. v. U-Select-It, Inc., No. 94-3179, 1995 WL 491151,
at *3 n.2 (E.D. La. Aug. 15, 1995). The plaintiffs' claim
for breach of implied warranty is similarly barred by the
exclusive nature of the LPLA. Grenier, 99 F.Supp.2d
at 763 (finding that breach of implied warranty claims are
not cognizable under the LPLA). Furthermore, the LPLA does
not authorize punitive damages. See La. Rev. Stat.
Ann. §9:2800.53(5) (limiting recovery to compensatory
damages); Bladen v. C.B. Fleet Holding Co., 487
F.Supp.2d 759, 770 (W.D. La. 2007) (“[T]he LPLA does
not authorize the recovery of punitive
Bard's Motion for Summary Judgment [ECF No. 53] is
GRANTED as to the plaintiff's negligence
and breach of implied warranty claims.
Additionally, Bard's Motion for Partial Summary Judgment
on Punitive Damages [ECF No. 55] is GRANTED.
argues that it is entitled to summary judgment because the
plaintiffs lack evidentiary support on the following claims:
strict liability manufacturing defect, breach of express
warranty, and strict liability failure to warn. The
plaintiffs have agreed not to pursue claims for manufacturing
defect and breach of express warranty. Resp. 11-12 [ECF No.
112]. Bard's Motion, therefore, on the plaintiffs'
claims for manufacturing defect, under theories of strict
liability and negligence, breach of express warranty, and
breach of implied warranty is GRANTED. The
only disputed claim concerns the plaintiffs' strict
liability failure to warn claim.
2800.57 of the LPLA sets forth when a product is unreasonably
dangerous because of an inadequate warning. In relevant part,
the section provides:
A. A product is unreasonably dangerous because an adequate
warning about the product has not been provided if . . . the
product possessed a characteristic that may cause damage and
the manufacturer failed to use reasonable care to provide an
adequate warning of such characteristic and its danger to
users and handlers of the product.
. . .
C. A manufacturer of a product who, after the product has
left his control, acquires knowledge of a characteristic of
the product that may cause damage and the danger of such
characteristic, or who would have acquired such knowledge had
he acted as a reasonably prudent manufacturer, is liable for
damage caused by his subsequent failure to use reasonable
care to provide an adequate warning of such characteristic
and its danger to users and handlers of the product.
La. Stat. Ann. § 9:2800.57.
with regard to failure to warn claims involving medical
devices, Louisiana follows the learned intermediary doctrine.
See Theriot v. Danek Medical, Inc.¸168 F.3d
253, 256 (5th Cir. 1999). “Under this doctrine, the
manufacturer has no duty to warn the patient, but need only
warn the patients physician.” Wi
let v. Baxter Intern., Inc., 929 F.2d
1094, 1098. (5th Cir. 1991). In order for a plaintiff to
recover for a failure to warn claim under the learned
intermediary doctrine, the plaintiff must show: “(1)
that the defendant failed to warn the physician of a risk
associated with the use of the product, not otherwise known
to the physician, and (2) that the failure to warn the
physician was both a cause in fact and the proximate cause of
the plaintiff's injury.” Id. (“[T]he
plaintiff must show . . . that but for the inadequate
warning, the treating physician would not have used or
prescribed the product.”). Accordingly, the plaintiffs
here must demonstrate that but for Bard's allegedly
inadequate warning, that Dr. Robertson or Dr. Blanton would
not have used, or at least would not have recommended using,
the Align in treating Ms. Hartzo.
to Bard, the plaintiffs have no evidence that a different
warning or additional warnings would have changed Ms.
Hartzo's treating physician's decision, and,
therefore, the plaintiffs cannot establish causation. Bard
points to Dr. Robertson's and Dr. Blanton's
deposition testimony as proof that no additional warnings
that should have been given would have changed their decision
to utilize the Align on Ms. Hartzo. In response, the
plaintiffs argue that Bard cannot hide behind the learned
intermediary doctrine because it has not demonstrated that
its warning to physicians was adequate. According to the
plaintiffs, Bard knew that Align mesh contracted, roped,
curled, and otherwise deformed, but had never provided that
warning to doctors. Further, the plaintiffs argue that had
Bard informed the doctors of this, they would have acted
differently and not recommended the Align in treating Ms.
review of the parties' briefs and the relevant deposition
testimony reveals that there is not enough evidence to
demonstrate that the treating physicians would have changed
their decisions in regards to Ms. Hartzo's treatment had
they received any additional warnings. Accordingly,
Bard's Motion regarding the plaintiffs' failure to
warn claims is GRANTED.
reasons discussed above, it is ORDERED that Bard's Motion
for Partial Summary Judgment [ECF No. 53] is GRANTED in
regard to the plaintiffs' claims for manufacturing
defect, breach of implied warranty, breach of express
warranty, negligence, and failure to warn. Further,
Bard's Motion for Partial Summary Judgment on Punitive
Damages [ECF No. 55] is GRANTED.
Court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented party.
 The plaintiffs do not contest that the
LPLA does not permit punitive damages. Pls.' Resp. [ECF
 The plaintiffs argue that Moore v.
Chrysler Corp., 596 So.2d 225, 234 (La. Ct. App. 1992)
stands for the proposition that they should be entitled to a
presumption that Ms. Hartzo's physicians would have heard
and heeded any additional warning that the plaintiffs allege
that Bard should have given. This logic is faulty.
Moore concerns a defective part of a mini-van, not a
medical device, and is not analyzed under the learned