United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT)
GOODWIN UNITED STATES DISTRICT JUDGE
before the court are Motions for Summary Judgment [ECF No.
89, 114, and 126] filed by defendants Ethicon, Inc. and
Johnson & Johnson (collectively, “Ethicon”).
As set forth below, Ethicon's Motion [ECF No. 89] is
DENIED and its Alternative Motion for Partial Summary
Judgment (“Alternative Motion”) [ECF No. 114] and
Amended Motion for Partial Summary Judgment (“Amended
Motion”) [ECF No. 126] are GRANTED in part and DENIED
action involves Indiana co-plaintiffs, Barbara and Anton
Kaiser. On January 27, 2009, Ms. Kaiser was implanted with
Prolift mesh, a product manufactured by Ethicon, at Munster
Community Hospital in Munster, Indiana, by Dr. Gregory Bales.
Am. Short Form Compl. [ECF No. 122] ¶¶ 1-12. 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.”
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
plaintiff files her claim directly into the MDL in the
Southern District of West Virginia, as the Kaisers did in
this case, the court consults the choice-of-law rules of the
state where the plaintiff was implanted with the product.
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, the court 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. Kaiser underwent the Prolift
implantation surgery in Indiana. Thus, the choice-of-law
principles of Indiana guide the court's choice-of-law
parties agree, as does the court, that these principles
compel application of Indiana substantive law to the
plaintiffs' claims. Indiana applies a modified lex
loci delecti test: the substantive law of the place
where the tort occurred controls the case unless the location
of the tort is an insignificant contact. Simon v. United
States, 805 N.E.2d 798, 805 (Ind. 2004). Ms. Kaiser is a
resident of Indiana, and she underwent the Prolift
implantation surgery in Indiana. Indiana is thus not an
insignificant contact. Indiana has a strong interest in
resolving tort actions brought by one of its citizens for
injuries arising from conduct alleged to have occurred within
its territorial jurisdiction. Thus, I will apply Indiana
substantive law to this case.
argues in its Motion [ECF No. 89] it is entitled to summary
judgment because the plaintiffs' claims are untimely
under the relevant two-year statute of limitations. The
Kaisers have presented evidence demonstrating a genuine
dispute of material fact regarding whether the claims were
brought within the ...