United States District Court, S.D. West Virginia, Charleston Division
December 21, 2016
HOLLY JONES, et al., Plaintiffs,
ETHICON, INC., et al., Defendants.
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. 92]. 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). This case was
originally filed in the Northern District of California.
Therefore, I use California's choice-of-law rules to
determine which state's law to apply to this case.
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 (Cal. 1976)).
first step-whether the laws of California and Michigan
actually differ- is satisfied. California and Michigan apply
different tests to establish liability for design defect
claims. One particular difference lies in the requirement
that a plaintiff shows the existence of a practical
alternative design. Michigan places a burden on the plaintiff
to produce evidence showing “that there was a
reasonable alternative design available.” Peck v.
Bridgeport Machs., Inc., 237 F.3d 614, 617 (6th Cir.
2001) (citing Owens v. Allis-Chalmers Corp., 326
N.W.2d 372 (Mich. 1982)). California, however, states that
“it is not the plaintiff's burden in a design
defect case to prove the existence of a feasible alternative
design.” Altman v. HO Sports Co., Inc., 821
F.Supp.2d 1178, 1196 n.17 (E.D. Cal. 2011) (quoting Ford
v. Polaris Indus., Inc., 43 Cal.Rptr.3d 215, 228
(Cal.Ct.App. 2006)). Because these requirements stand in
opposition to one another, I find that the laws of California
and Michigan differ. I now move to the second step.
the second step, I must determine whether both states have an
interest in having their respective laws applied in this
case. In other words, I must decide whether “only one
of the states has an interest in having its law
applied.” Wash. Mut. Bank, FA v. Super. Ct.,
15 P.3d 1071, 1081 (Cal. 2001). If only one state has an
interest in having its law applied here, I will apply the law
of that state.
is the only state with an interest in this case. The
plaintiff is a Michigan resident and was implanted with
Ethicon's product in Michigan. Michigan has an interest
in protecting its residents from injuries that occurred
within its territorial jurisdiction. I find that
Michigan's interests would be significantly impaired if
its law were not applied. The parties agree that these
principles compel application of Michigan law. Thus, the court
applies Michigan's substantive law to this case.
argues it is entitled to summary judgment because the
plaintiffs' legal theories are without evidentiary or
Negligence - Manufacturing Defect
their Response, the plaintiffs expressly withdraw their
manufacturing defect claim. Accordingly, Ethicon's Motion
with regard to this claim is GRANTED.
Strict Liability Claims
does not accept strict liability as the basis of a claim on
which relief can be granted.” Magnant v. Medtronic,
Inc., 818 F.Supp. 204, 206 (W.D. Mich. 1993) (citing
Prentis v. Yale Mfg. Co., 365 N.W.2d 176, 181-86
(Mich. 1984)); see Radeljak v. Daimlerchrysler
Corp., 719 N.W.2d 40, 47 n.10 (Mich. 2006) (listing
Michigan as one of six states that does not recognize strict
liability) (citing Piper Aircraft Co. v. Reyno, 454
U.S. 235, 252 n.18 (1981)). In the products liability
context, only negligence and implied warranty are recognized,
“not strict liability.” Toth v. Yoder
Co., 749 F.2d 1190, 1193 (6th Cir. 1984) (citing
Hartford Fire Ins. v. Walter Kidde & Co., 328
N.W.2d 29, 33 (Mich. Ct. App. 1982)).
the plaintiffs' strict liability claims must fail as a
matter of law. Ethicon's Motion regarding the
plaintiffs' strict liability - manufacturing defect,
strict liability - failure to warn, strict liability -
defective product, and strict liability - design defect
claims is GRANTED.
Negligent Infliction of Emotional Distress
[a] plaintiff may recover for negligent infliction of
emotional distress where (1) the injury threatened or
inflicted on the third person is a serious one, of a nature
to cause severe mental disturbance to the plaintiff, (2) the
shock results in actual physical harm, (3) the plaintiff is a
member of the third person's immediate family, and (4)
the plaintiff is present at the time of the accident or
suffers shock ‘fairly contemporaneous' with the
Taylor v. Kurapati, 600 N.W.2d 670, 693 (Mich. Ct.
App. 1999). Thus, “Michigan recognizes the tort of
negligent infliction of emotional distress only when a
plaintiff witnesses negligent injury to a third party and
suffers mental disturbance as a result.” Teadt v.
Lutheran Church Mo. Synod, 603 N.W.2d 816, 823 n.6
(Mich. Ct. App. 1999) (citing Duran v. Det. News,
Inc., 504 N.W.2d 715 (Mich. Ct. App. 1993));
see Gillespie v. City of Battle Creek, 100
F.Supp.3d 623, 634 (W.D. Mich. 2015).
plaintiffs' complaint does not allege that they witnessed
injury to an immediate family member. To the contrary, the
plaintiffs only allege direct injury to Ms. Jones.
Accordingly, Ethicon's Motion for Summary Judgment
regarding the plaintiffs' negligent infliction of
emotional distress claim is GRANTED.
considering the parties' proffered arguments and
evidence, I FIND that genuine disputes of material fact exist
regarding the plaintiff's remaining claims. Accordingly,
to the extent Ethicon's Motion challenges any other
claims, the Motion is DENIED.
reasons discussed above, it is ORDERED that Ethicon's
Motion for Summary Judgment [ECF No. 92] is GRANTED in part
and DENIED in part. Ethicon's Motion is GRANTED with
regard to the plaintiff's negligence -manufacturing
defect, strict liability - manufacturing defect, strict
liability - failure to warn, strict liability - defective
product, and strict liability - design defect claims. To the
extent that Ethicon's Motion challenges any other claims,
the Motion is DENIED.
Court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented party.
 The parties agree that Michigan
substantive law applies. The defendants applied
California's governmental interest test to determine that
Michigan substantive law applies. Def.'s Mem. in Supp. of
Mot. for Summ. J. [ECF No. 93]. Additionally, the plaintiffs
do not dispute that Michigan substantive law applies.
See Response 7 [ECF No. 100].