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Funderburke v. Ethicon, Inc.

United States District Court, S.D. West Virginia, Charleston Division

December 20, 2016

ETHICON, INC., ET AL., Defendant.



         Pending before the court is a Motion for Summary Judgment [ECF No. 111] filed by defendants Ethicon Inc. and Johnson & Johnson (collectively “Ethicon”) against plaintiff Betty Funderburke. As set forth below, Ethicon's Motion for Summary Judgment is GRANTED in part and DENIED in part. Defendants move for summary judgment on all of plaintiff's substantive claims and plaintiff opposes summary judgment only for negligence (Count I) and gross negligence (Count XIV).[1] Summary judgment is GRANTED in part with respect to Ms. Funderburke's claims for strict liability for manufacturing defect, strict liability for failure to warn, strict liability for defective product, strict liability for design defect, common law fraud, fraudulent concealment, constructive fraud, negligent misrepresentation, negligent infliction of emotional distress, breach of express warranty, breach of implied warranty, violation of consumer protection laws, and unjust enrichment (Counts II through XIII and Count XV). Summary judgment is DENIED in part with respect to Ms. Funderburke's claims for negligent failure to warn and gross negligence (Counts I and XIV).

         I. Background

         This 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 28, 000 of which are in the Ethicon MDL. 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 defendant 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 at This selection process was completed three times, creating three waves of 200 cases, Wave 1, Wave 2, and Wave 3. Ms. Funderburke's case was selected as a Wave 1 case.

         Ms. Funderburke was surgically implanted with Prolift and TVT-O on December 31, 2008. (Mem. in Supp. of Defs.' Mot. for Summ. J. (“Defs.' Mem.”) [ECF No. 112], at 2). She is a resident of and received the surgery in North Carolina. (Defs.' Mem. at 4). Ms. Funderburke testified that she began feeling a “sticking” sensation starting roughly “two or three weeks” after the surgery. (Defs.' Mem. at 2). Ms. Funderburke returned to her doctor's office on March 27, 2009, complaining of a “burning sensation” and an uncomfortable sensation “as if ‘stomach is moving.'” (Defs.' Mem. at 2). At that appointment, the doctor noted exposed mesh and recommended vaginal mesh revision surgery. (Defs.' Mem. at 2). Ms. Funderburke underwent a revision surgery on March 31, 2009, but she continued to experience “burning” and “sticking” sensations. (Defs.' Mem. at 3). Ms. Funderburke underwent two additional revision surgeries, one on January 14, 2010 and then on September 23, 2010. (Defs.' Mem. at 3).

         Ms. Funderburke filed her original complaint in the Western District of North Carolina on March 22, 2012. (Defs.' Mem. at 3). Ethicon has moved for summary judgment on all of Ms. Funderburke's substantive claims. (Defs.' Mem. at 1).

         II. Legal Standards

         A. Summary Judgment

         To 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).

         Although 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).

         B. Choice of Law

         Under 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, 2010).

         If a plaintiff files her claim directly into the MDL in the Southern District of West Virginia, however, I consult the choice-of-law rules of the state in which the implantation surgery took place. 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. Funderburke filed this case in the Western District of North Carolina and it was transferred to the Southern District of West Virginia by order of the United States Judicial Panel on Multidistrict Litigation. (Conditional Transfer Order [ECF No. 3]). Thus, the choice-of-law principles of North Carolina guide this court's choice-of-law analysis.

         The parties agree, as does this court, that these principles compel application of North Carolina law. For tort claims, North Carolina generally applies the lex loci delicti approach, which provides that “the state where the injury occurred is considered the situs of the claim.” Harco Nat'l Ins. Co. v. Grant Thornton LLP, 698 S.E.2d 719, 722-23 ( N.C. Ct. App. 2010). Here, the alleged injury occurred in North Carolina, where Ms. Funderburke was implanted with the allegedly defective device. Thus, I apply North Carolina's substantive law to the tort claims in this case. For warranty claims, North Carolina applies the “most significant relationship” approach, which “requires the forum to determine which state has the most significant relationship to the case.” Boudreau v. Baughman, 368 S.E.2d 849, 853-54 ( N.C. 1988). North Carolina courts have found that “the place of sale, distribution, delivery, and ...

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