United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DEFENDANTS' AMENDED
MOTION FOR SUMMARY JUDGMENT)
GOODWIN UNITED STATES DISTRICT JUDGE
before the court is the defendants' Amended Motion for
Summary Judgment [ECF No. 99]. 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
60, 000 cases currently pending, approximately 28, 000 of
which are in the Ethicon, Inc. and Johnson & Johnson,
Inc. (“Ethicon”) Multidistrict Litigation
(“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, which would then become
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,
completed this process four times and selected Ms.
Williams' case as a Wave 1 case.
November 17, 2006, Ms. Williams was surgically implanted with
the defendants' TVT-Obturator (“TVT-O”) and
Prolift (“Prolift”), products manufactured by
Ethicon. Am. Short Form Compl. ¶¶ 9-10 [ECF No.
21]. Ms. Williams' surgery occurred at Overland Park
Regional Medical Center in Overland, Kansas. Id.
¶ 11. Ms. Williams claims that as a result of
implantation of these devices she has experienced multiple
complications. She brought the following claims against
Ethicon: (I) negligence, (II) strict liability -
manufacturing defect, (III) strict liability - failure to
warn, (IV) strict liability - defective product, (V) strict
liability - design defect, (VI) common law fraud, (VII)
fraudulent concealment, (VIII) constructive fraud, (IX)
negligent misrepresentation, (X) negligent infliction of
emotional distress, (XI) breach of express warranty; (XII)
breach of implied warranty, (XIII) violation of consumer
protection laws, (XIII) violation of consumer protection
laws, (XIV) gross negligence, (XV) unjust enrichment, (XVII)
punitive damages, and (XVIII) discovery rule and tolling.
Id. ¶ 13.
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).
the plaintiff originally filed her case in the Western
District of Missouri. Therefore, Missouri law governs the
choice-of-law analysis. Missouri law employs “the most
significant relationship test” to determine which
state's substantive law to apply in a tort action.
Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo. 1969) (en
banc). Under this test, the court must evaluate the contacts
of each interested state and determine which state “has
the most significant contacts” with the lawsuit.
Id. In doing so, the court balances four factors:
“(a) the place where the injury occurred, (b) the place
where the conduct causing the case occurred, (c) the
domicile, residence, nationality, place of ...