United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (Defendants' Motion
for Partial Summary Judgment)
R. GOODWIN, UNITED STATES DISTRICT JUDGE
before the court is the Motion for Partial Summary Judgment
[ECF No. 103] filed by defendants Ethicon, Inc. and Johnson
& Johnson (collectively “Ethicon”). As set
forth below, the defendants' Motion is GRANTED in part
and DENIED in part.
action involves an Ohio plaintiff who was implanted with
Prosima and TVT-Obturator (“TVT-O”), mesh
products manufactured by Ethicon. The 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
60, 000 cases currently pending, nearly 28, 000 of which are
in the Ethicon MDL, MDL 2327.
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,
The plaintiffs' case was selected as an “Ethicon
Wave 1 case.”
A. Summary Judgment
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
determine the applicable state law for a dispositive motion,
the court generally refers to the choice-of-law rules of the
jurisdiction where the plaintiffs first filed their claim.
See In re Air Disaster at Ramstein Air Base, Ger.,
81 F.3d 570, 576 (5th Cir. 1996). This case was originally
filed in the United States District Court for the District of
New Jersey. Compl. [ECF No. 1]. Therefore, I use New
Jersey's choice-of-law rules to determine which
state's substantive law to apply to this case. New Jersey
uses a two-step approach to resolve choice-of-law questions.
Arlandson v. Hartz Mountain Corp., 792 F.Supp.2d
691, 699 (D.N.J. 2011) (citing P.V. ex rel. T.V. v. Camp
Jaycee, 962 A.2d 453, 460-63 (N.J. 2008)). Under the
first step, the court must determine whether an actual
conflict exists. Id. “Second, if a conflict
does exist, the court must determine which state has the
‘most significant relationship' to the
first step-whether the laws of New Jersey and Ohio are
actually in conflict-is satisfied. Applying this step, the
court examines the applicable laws of each state to determine
“whether there is a distinction in the laws of
particular jurisdictions.” Lebegern v. Forman,
471 F.3d 424, 430 (4th Cir. 2006) (applying New Jersey law)
(quoting Grossman v. Club Med Sales, Inc., 640 A.2d
1194, 1197-98 ( N.J.Super.Ct.App.Div. 1994)). Laws are
considered distinct when the law of one state mandates a
different outcome from the law of another state. Id.
Here, an actual conflict exists between Ohio and New Jersey
law. Specifically, the New Jersey Product Liability Act
(“NJPLA”) and the Ohio Product Liability Act
(“OPLA”) abrogate different claims, leading to
different outcomes. For example, the OPLA expressly
eliminates “all common law product liability claims or
causes of action, ” including express warranty claims.
Ohio Rev. Code § 2307.71(B); See Krumpelbeck v.
Breg, Inc., 491 F. App'x. 713, 721 (6th Cir. 2012)
(applying Ohio law). The NJPLA, on the other hand, does not
abrogate express warranty claims. See N.J. Stat.
Ann. § 2A:58C-1(b)(3). Thus, an actual conflict exists.
the second step, New Jersey follows the “most
significant relationship test, ” as outlined in the
Restatement (Second) of Conflict of Laws, in determining
choice of law questions. Camp Jaycee, 962 A.2d at
455. “Under that standard, the law of the state of
injury is applicable unless another state has a more
significant relationship to the parties and issues.”
Id. (citing Restatement (Second) of Conflict of Laws
§ 146 (Am. Law Inst. 1971)). “If another state has
a more significant relationship to the parties or issues, the
presumption will be overcome. If not, it will govern.”
Id. To determine whether the state where the
injuries did not occur has a more significant relationship,
the court must consider section 145 of the Restatement.
Id. Specifically, the court must consider:
“(a) the place where the injury occurred, (b) the place
where the conduct causing the injury occurred, (c) the
domicil, residence, nationality, place of incorporation and
place of business of the parties, and (d) the place where the
relationship, if any, between the parties is centered.”
Restatement (Second) of Conflict of Laws § 145(2);
See Camp Jaycee, 962 A.2d at 455 (explaining that
courts look at the contacts detailed in section 145 of the
the implantation surgery took place in Ohio and Ms.
Vignos-Ware received medical care for her alleged injuries in
Ohio. Ms. Vignos-Ware was also a resident of Ohio when the
alleged injury occurred. ...