United States District Court, S.D. West Virginia, Charleston Division
December 20, 2016
BETTY FUNDERBURKE, Plaintiff,
ETHICON, INC., ET AL., Defendant.
MEMORANDUM OPINION AND ORDER (DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT)
R. GOODWIN JUDGE
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). 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).
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
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.
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).
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
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, 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.
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 use of the product, as well as
the place of injury . . . to be the state with the most
significant relationship to the warranty claims.”
Id. at 855-56. Thus, I also apply North
Carolina's substantive law to the warranty claims in this
argues that it is entitled to summary judgment on Counts II
through XIII and Count XV because Ms. Funderburke's
claims lack either evidentiary or legal support. Ms.
Funderburke does not offer any opposition to Ethicon's
motion with regard to these counts. (Pl.'s Resp. in
Opp'n to Defs.' Mot. For Summ. J.) (“Pl.'s
Resp.”) [ECF No. 113]. Ethicon's Motion for Summary
Judgment is GRANTED as to Counts II through
XIII and Count XV. Ms. Funderburke opposes Ethicon's
motion with regard to her negligence (Count I) and gross
negligence (Count XIV) claims. (Pl.'s Resp. at 1). Below,
I apply the summary judgment standard to each remaining
Statute of Limitations
threshold matter, Ethicon argues that Ms. Funderburke's
claims are barred because they accrued outside of the period
prescribed by the applicable statute of limitations.
“[W]hether a cause of action is barred by the statute
of limitations is a mixed question of law and fact”
unless the facts are not in conflict, in which case the
question becomes one of law. Pembee Mfg. Corp. v. Cape
Fear Const. Co., 329 S.E.2d 350, 353 ( N.C. 1985)
(citations omitted). “Where, however, the evidence is
sufficient to support an inference that the cause of action
is not barred, the issue is for the jury.” Little
v. Rose, 208 S.E.2d 666, 668 (1974) (citations omitted).
The parties agree that the applicable statute in this case is
N.C. Gen. Stat. § 1-52, which provides a three-year
period of limitations for personal injury claims sounding in
negligence. See N.C. Gen. Stat. § 1-52;
Driggers v. Sofamor, S. N.C. , 44 F.Supp.2d 760, 766
(M.D. N.C. 1998). The statute provides, in relevant part:
“[F]or personal injury or physical damage to
claimant's property, the cause of action . . . shall not
accrue until bodily harm to the claimant or physical damage
to his property becomes apparent or ought reasonably to have
become apparent to the claimant . . . .” N.C. Gen.
Stat. Ann. § 1-52(16). At common law, a plaintiff's
cause of action would accrue at the time of injury,
regardless of the plaintiff's awareness of the injury.
Pembee, 329 S.E.2d at 353. The purpose of
the statute is to “modify the sometimes harsh common
law rule by protecting a potential plaintiff in the case of a
latent injury by providing that a cause of action does not
accrue until the injured party becomes aware or should
reasonably have become aware of the existence of the
injury.” Id. at 354.
issue in this case is whether Ms. Funderburke's alleged
bodily harm became or should have become apparent to her
during the limitations period. Ms. Funderburke testified that
she began to feel a “sticking” sensation in the
weeks following her December 31, 2008 surgery and reported
this to her physician by January 26, 2009. (Defs.' Mem.
at 6). Thus, Ethicon argues, her cause of action accrued no
later than January 26, 2009 and the statute of limitations
expired no later than January 26, 2012. The parties agree,
however, that Ms. Funderburke's treating physician first
noted areas of exposed mesh and recommended revision surgery
on March 27, 2009, at which time Ms. Funderburke felt a
burning sensation in her abdomen as well as an uncomfortable
sensation described as feeling like her stomach was moving.
(Defs.' Mem. at 2). If Ms. Funderburke's cause of
action accrued on or around that time, then the statute of
limitations would expire on or around March 27, 2012.
Plaintiff commenced this action on March 22, 2012.
(Defs.' Mem. at 3).
Funderburke asserts that there is a material question of fact
as to whether her post-surgery sensation of
“sticking” constitutes apparent bodily harm as
opposed to “merely a post-surgical complaint that her
implanting physician could address.” (Pl.'s Resp.
at 3-4). Plaintiff disputes both that bodily harm was in fact
apparent to her and that it ought reasonably to have been
apparent to her. (Pl.'s Resp. at 3). Defendants compare
the facts of this case to those of McCarver v.
Blythe, a North Carolina state court decision.
(Defs.' Mem at 5). In McCarver, a case about
property damage, the court found that a defendant's
counterclaim accrued when he visited the property because he
testified that he noticed “that the porches and the
roof were rotting, [and] that the boards needed replacing and
roof needed ‘sheathing.'” McCarver v.
Blythe, 555 S.E.2d 680, 683 ( N.C. Ct. App. 2001).
However, unlike McCarver where the claimant admitted
he was aware of visible property damage, in this case, Ms.
Funderburke testified that she experienced some post-surgical
discomfort as of January 26, 2009.
the record in the light most favorable to the nonmoving
party, Ms. Funderburke, I FIND that a
reasonable jury could determine that plaintiff's bodily
harm was not apparent to her, and ought not have been
reasonably apparent, at that time. Therefore, Ethicon's
Motion for Summary Judgment is DENIED as to
the statute of limitations issue.
Negligent Failure to Warn
North Carolina law, “[n]o manufacturer . . . shall be
held liable in any product liability action for a claim based
upon inadequate warning or instruction unless the
claimant” can satisfy three requirements. N.C. Gen.
Stat. § 99B-5(a). First, the claimant must establish
“that the manufacturer . . . acted unreasonably in
failing to provide such warning or instruction.”
Id. Second, the claimant must establish “that
the failure to provide adequate warning or instruction was a
proximate cause of the harm for which damages are
sought.” Id. Finally, the claimant must
establish either of the following:
(1) At the time the product left the control of the
manufacturer . . ., the product, without an adequate warning
or instruction, created an unreasonably dangerous condition
that the manufacturer . . . knew, or in the exercise of
ordinary care should have known, posed a substantial risk of
harm to a reasonably foreseeable claimant[; or] (2) After the
product left the control of the manufacturer . . ., the
manufacturer or seller became aware of or in the exercise of
ordinary care should have known that the product posed a
substantial risk of harm to a reasonably foreseeable user or
consumer and failed to take reasonable steps to give adequate
warning or instruction or to take other reasonable action
under the circumstances.
argues that, under subsection (c) of the same statute, the
learned intermediary doctrine shields it from liability.
(Defs.' Mem. at 9 (citing N.C. Gen. Stat. §
99B-5(c))). Subsection (c) provides: “[N]o manufacturer
or seller of a prescription drug shall be liable in a
products liability action for failing to provide a warning or
instruction directly to a consumer if an adequate warning or
instruction has been provided to the physician or other
legally authorized person who prescribes or dispenses that
prescription drug for the claimant . . . .” N.C. Gen.
Stat. § 99B-5(c).
am not persuaded that the plain language of subsection (c)
provides the basis for application of the learned
intermediary doctrine to the instant case, “[t]here are
indications that North Carolina courts would adhere to the
learned intermediary doctrine” in matters of product
liability. Baraukas v. Danek Med., Inc., No.
6:97CV00613, 2000 WL 223508, at *4 (M.D. N.C. Jan. 13, 2000)
(citing Foyle ex rel. McMi lan v.
Lederle Labs., 674 F.Supp. 530, 535-36 (E.D. N.C.
1987)). In Baraukas, the United States District
Court for the Middle District of North Carolina determined
that the learned intermediary doctrine applied where the
manufacturer warned the plaintiff's physician about bone
screws. Id. Accordingly, consistent with the courts
that have addressed this issue before me, I assess Ms.
Funderburke's negligent failure to warn claim under the
learned intermediary doctrine.
FIND that genuine disputes of material fact
exist with regard to: (1) whether Ethicon's warning was
adequate; and (2) whether the alleged inadequate warning
proximately caused the alleged harm to Ms. Funderburke.
Therefore, Ethicon's Motion for Summary Judgment on Ms.
Funderburke's negligent failure to warn claim is
North Carolina Supreme Court has said the following with
regard to ordinary negligence and gross negligence:
[T]he difference between the two is not in degree or
magnitude of inadvertence or carelessness, but rather is
intentional wrongdoing or deliberate misconduct affecting the
safety of others. An act or conduct rises to the level of
gross negligence when the act is done purposely and with
knowledge that such act is a breach of duty to others, i.e.,
a conscious disregard of the safety of others. An act or
conduct moves beyond the realm of negligence when the injury
or damage itself is intentional.
Yancey v. Lea, 550 S.E.2d 155, 158 ( N.C. 2001)
(emphasis omitted) (citing Brewer v. Harris, 182
S.E.2d 345, 350 ( N.C. 1971)).
asserts, without elaboration, that Ms. Funderburke has not
presented sufficient evidence to establish the elements of
gross negligence. (Defs.' Mem. at 18). Ms. Funderburke
asserts that there is a dispute of fact as to whether Ethicon
actively and intentionally misled the public by withholding
information about product risks. (Pl.'s Resp. at 11).
Ethicon does not address this issue in its Reply to Pl.'s
Resp. [ECF No. 126].
the facts in the light most favorable to Ms. Funderburke, I
FIND that there is a material dispute of
fact regarding the issue of gross negligence. Therefore,
Ethicon's Motion for Summary Judgment on Ms.
Funderburke's gross negligence claim is
reasons discussed above, it is ORDERED that
Ethicon's Motion for Summary Judgment [ECF No. 111] 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). The Court
DIRECTS the Clerk to send a copy of this
Order to counsel of record and any unrepresented party.
 Neither party addresses punitive
damages (Count XVII) or discovery and rule tolling (Count
XVIII). I do not make any rulings as to those issues.