United States District Court, S.D. West Virginia, Charleston Division
January 6, 2017
DEE MCBRAYER, 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 a Motion for Summary Judgment [ECF No.
93] filed by defendants Ethicon, Inc. and Johnson &
Johnson (collectively “Ethicon”) against
plaintiffs Dee and Timothy McBrayer. The plaintiffs filed a
Response [ECF No. 105] and Ethicon filed a Reply [ECF No.
108]. As set forth below, Ethicon's Motion is GRANTED in
part and DENIED in part.
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
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
Plaintiffs' case was selected as a Wave 1 case.
McBrayer was implanted with the Prolift, a product
manufactured by Ethicon, on or around July 30, 2007 at
Carolinas Medical Center, Charlotte, North Carolina by Doctor
Gerald Bernard Taylor. Am. Short Form Compl. ¶ 8-12 [ECF
No. 17]. She is a resident of North Carolina. Id.
¶ 4. Ethicon moves for summary judgment on all of the
plaintiffs' substantive claims. Defs.' Mem. Supp. Mot.
Summ. J. 1 [ECF No. 94].
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
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).
plaintiff files her claim directly into the MDL in the
Southern District of West Virginia, however, as the
plaintiffs did in this case, 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.”). Thus, the choice-of-law principles of North
Carolina guide this court's choice-of-law analysis.
parties appear to 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)
(quoting Boudreau v. Baughman, 368 S.E.2d 849,
853-54 ( N.C. 1988)). Here, the alleged injury occurred in
North Carolina, where Ms. McBrayer 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, 368 S.E.2d at 853-54. North Carolina
courts have found that the state of “the place of sale,
distribution, delivery, and use of the product, as well as
the place of injury [is] 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 case.
argues it is entitled to summary judgment because the
plaintiffs' legal theories are without evidentiary or
Statute of Limitations
threshold matter, Ethicon argues that the plaintiffs'
claims are barred because the statute of limitations period
expired before the plaintiffs filed their original complaint.
“[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 ( N.C. 1974) (citations
parties agree that the primary 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.
argue that to the extent their claims are based on fraud,
they are not time-barred under N.C. Gen. Stat. §
1-52(9). That section provides: “For relief on the
ground of fraud or mistake; the cause of action shall not be
deemed to have accrued until the discovery by the aggrieved
party of the facts constituting the fraud or mistake.”
N.C. Gen. Stat. § 1-52(9). Ethicon does not respond to
case, Ethicon presents ample evidence that could support a
reasonable jury's finding that Ms. McBrayer's bodily
harm was apparent or reasonably should have been apparent to
the plaintiffs more than three years before they filed their
complaint. However, viewing the record in the light most
favorable to the nonmoving party, I FIND that a reasonable
jury could determine that Ms. McBrayer's bodily harm was
not apparent, and ought not to have been reasonably apparent,
to the plaintiffs more than three years before they filed
their complaint. Therefore, Ethicon's Motion is DENIED as
to the statute of limitations issue.
Counts II, IV, V, VI, VII, VIII, X, and XV
plaintiffs expressly withdraw the following counts that they
asserted in the Amended Short Form Complaint: Count II
(strict liability - manufacturing defect), Count IV (strict
liability - defective product), Count V (strict liability -
design defect), Count VI (common law fraud), Count VII
(fraudulent concealment), Count VIII (constructive fraud),
Count X (negligent infliction of emotional distress), and
Count XV (unjust enrichment). Pls.' Resp. to Defs.'
Mot. Summ. J. [ECF No. 105]. Accordingly, Ethicon's
Motion with regard to these claims is GRANTED.
Count III (Strict Liability - Failure to Warn)
Carolina law provides: “There shall be no strict
liability in tort in product liability actions.” N.C.
Gen. Stat. Ann. § 99B-1.1. North Carolina law also
recognizes an action sounding in negligence for failure to
warn. N.C. Gen. Stat. § 99B-5(a).
the plaintiffs oppose Ethicon's Motion on Count III
(Strict Liability - Failure to Warn). Pls.' Resp. to
Defs.' Mot. Summ. J. [ECF No. 105]. However, the
plaintiffs' arguments regarding failure to warn rely on
§ 99B-5(a) of the statute and do not address strict
liability. Pls.' Mem. Supp. Resp. to Defs.' Mot.
Summ. J. 7-14 [ECF No. 106]. I thus interpret plaintiffs'
failure to warn claim as sounding in negligence. I address
Ethicon's Motion with regard to the negligent failure to
warn claim in Section F below. To the extent that the
plaintiffs also assert a separate claim sounding in strict
liability, Ethicon's Motion on that point is GRANTED.
Count IX (Negligent Misrepresentation)
North Carolina Supreme Court has not ruled on whether
negligent misrepresentation is a viable theory of recovery in
products liability cases causing personal injury rather than
pecuniary loss. In the absence of such guidance, “the
state's intermediate appellate court decisions
‘constitute the next best indicia of what state law is
. . . .'” Liberty Mut. Ins. Co. v. Triangle
Indus., Inc., 957 F.2d 1153, 1156 (4th Cir. 1992). The
North Carolina Court of Appeals has indicated that, in
products liability cases causing personal injury, the state
does not recognize negligent misrepresentation as a theory of
recovery independent from a traditional negligence claim.
That court held that North Carolina has “adopted the
Restatement 2d definition of negligent misrepresentation and
. . . the action lies where pecuniary loss results
from the supplying of false information to others for the
purpose of guiding them in their business
transactions.” Michael v. Huffman Oil Co., 661
S.E.2d 1, 11 ( N.C. Ct. App. 2008) (quoting Driver v.
Burlington Aviation, Inc., 430 S.E.2d 476, 480 ( N.C.
Ct. App. 1993) (gathering cases)). However, that court did
not find “any case in which the theory of negligent
misrepresentation was approved as a basis for recovery for
personal injury.” Id. (quoting
Driver, 430 S.E.2d at 481) (finding that
plaintiffs' allegations of negligent misrepresentation by
product manufacturer were nonetheless “sufficient to
state a claim for relief based upon traditional negligence
although the plaintiffs oppose Ethicon's motion for
summary judgment on Count IX, the plaintiffs do not offer any
authority in support of their argument that negligent
misrepresentation is a viable claim, independent of
traditional negligence, on the facts of this case.
Accordingly, Ethicon's Motion on this point is GRANTED.
Count XII (Breach of Implied Warranty)
Carolina law provides for both the implied warranty of
merchantability, N.C. Gen. Stat. § 25-2-314(1), and the
implied warranty of fitness for a particular purpose, N.C.
Gen. Stat. § 25-2-315. Ethicon's motion for summary
judgment on the plaintiffs' breach of implied warranty of
merchantability claim is addressed below in Section F.
Ethicon's motion for summary judgment on the
plaintiffs' breach of implied warranty of fitness for a
particular purpose is addressed here.
North Carolina law, “[w]here the seller at the time of
contracting has reason to know any particular purpose for
which the goods are required and that the buyer is relying on
the seller's skill or judgment to select or furnish
suitable goods, there is” an implied warranty that the
goods are fit for that particular purpose. N.C. Gen. Stat.
§ 25-2-315. Critically, “[a] ‘particular
purpose' differs from the ordinary purpose for which the
goods are used in that it envisages a specific use by the
buyer which is peculiar to the nature of his business . . .
.” Id. cmt. 2. On the other hand, “the
ordinary purposes for which goods are used are those
envisaged in the concept of merchantability and go to uses
which are customarily made of the goods in question.”
the plaintiffs do not dispute that the Prolift was sold for
its ordinary purpose-to treat SUI and POP-and not a
particular purpose native to the plaintiffs'
circumstances. See Foyle ex rel. McMillan v. Lederle
Labs., 674 F.Supp. 530, 535 (E.D. N.C. 1987) (“In
the present case the DPT vaccine had the ordinary purpose of
preventing the contraction of disease. There was no
particular purpose, native to the plaintiff's position,
that would implicate the implied warranty for a particular
purpose.”). Therefore, Ethicon's Motion for Summary
Judgment on the plaintiffs' breach of implied warranty of
fitness for a particular purpose claim is GRANTED.
considering the parties' proffered arguments and
evidence, I FIND that genuine disputes of material fact exist
regarding the plaintiffs' 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. 93] is GRANTED in part
and DENIED in part.
Motion on the following claims is GRANTED: Count II (strict
liability - manufacturing defect), Count III (strict
liability - failure to warn), Count IV (strict liability -
defective product), Count V (strict liability - design
defect), Count VI (common law fraud), Count VII (fraudulent
concealment), Count VIII (constructive fraud), Count IX
(negligent misrepresentation), Count X (negligent infliction
of emotional distress), Count XII (breach of implied warranty
of fitness for a particular purpose), and Count XV (unjust
Motion on the following claims is DENIED: Count I
(negligence, including negligent failure to warn), Count XI
(breach of express warranty), Count XII (breach of implied
warranty of merchantability), Count XIII (violation of
consumer protection laws), Count XIV (gross negligence),
Count XVI (loss of consortium).
Court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented party.
 Ethicon does not address Count XVII
(punitive damages) or Count XVIII (discovery and rule
tolling). I do not make any rulings as to those