United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is the Motion for Summary Judgment [ECF No.
73] filed by defendants Ethicon, Inc. and Johnson &
Johnson (collectively, “Ethicon”). As set forth
below, Ethicon's Motion is GRANTED in part and DENIED in
action involves a Tennessee plaintiff who was implanted with
Tension-free Vaginal Tape-Obturator (“TVT-O”),
Gynemesh, and Gynecare Prolift (“Prolift”), mesh
products manufactured by Ethicon. Am. Short Form Compl. [ECF
No. 19] ¶¶ 1- 9. 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 plaintiff's 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
parties agree, as does this court, that Tennessee law applies
to the plaintiff's claims. To determine the applicable
state law for a dispositive motion, I generally refer 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). The
plaintiff originally filed this action in the United States
District Court for the Western District of Missouri. Thus,
the choice-of-law principles of Missouri guide this
court's choice-of-law analysis.
follows the “most significant relationship” test,
as outlined in section 145 of the Restatement (Second) of
Conflict of Laws, in determining choice of law questions.
Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo. 1969).
Section 145 directs courts to consider four factors:
“(a) the place where the injury occurred, (b) the place
where the conduct causing the injury occurred, (c) the
domicile of the parties, and (d) the place where the
parties' relationship is centered.” Nelson v.
Hall, 684 S.W.3d 350, 351-52 (Mo.Ct.App. 1984) (quoting
Restatement (Second) of Conflict of Laws § 145 (1971)).
Here, the implantation surgery that allegedly resulted in Ms.
Rhynehart's injuries took place in Tennessee. Ms.
Rhynehart is a Tennessee resident and received medical care
for her alleged injuries in Tennessee. Moreover, both parties
agree that Tennessee is the proper choice of law.
Accordingly, Tennessee's substantive law governs the
argues it is entitled to summary judgment because the
plaintiff's claims are ...