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