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 a Motion for Summary Judgment [ECF No.
51] and an Alternative Motion for Summary Judgment [ECF No.
54] filed by defendants Ethicon, Inc. and Johnson &
Johnson (collectively, “Ethicon”). As set forth
below, Ethicon’s Motion [ECF No. 51] is DENIED and its
Alternative Motion [ECF No. 54] is GRANTED in part and DENIED
action involves an Ohio plaintiff who was implanted with
Prolift, a mesh product manufactured by Ethicon. Stipulated
Am. Short Form Compl. [ECF No. 34] ¶¶ 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. 206, In re Ethicon, Inc. Pelvic Repair Sys.
Prods. Liab. Litig., No. 2:12-md-002327, Nov. 20, 2015,
The plaintiff’s case was selected as an “Ethicon
Wave 2 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
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 Ohio 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 Ohio. Thus, the
choice-of-law principles of Ohio guide this court’s
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.
Morgan v. Biro Mfg. Co., Inc., 474 N.E.2d 286,
288–89 (Ohio 1984). Section 145 directs courts to
consider four factors: (1) the place where the injury
occurred, (2) the place where the conduct causing the injury
occurred, (3) the domicile of the parties, and (4) the place
where the parties' relationship is centered. Id.
Here, the implantation surgery that allegedly resulted in Ms.
Bates’ injuries took place in Ohio. Ms. Bates also
resides in Ohio and received medical care for her alleged
injuries in Ohio. Accordingly, Ohio's substantive law
governs this case.
argues it is entitled to summary judgment because the
plaintiff’s claims are ...