United States District Court, S.D. West Virginia, Charleston Division
MARGARET A. SCHOMER, Plaintiff,
ETHICON, INC., et al., Defendants.
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.
67] 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 an Illinois plaintiff who was implanted with
Prolift, TVT-Obturator (“TVT-O”), and TVT-SECUR
(“TVT-S”), mesh products manufactured by Ethicon.
Am. Short Form Compl. [ECF No. 23] ¶¶ 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 (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 Illinois 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 District of
Minnesota. Thus, the choice-of-law principles of Minnesota
guide this court's choice-of-law analysis.
focuses on two factors in resolving choice-of-law issues: (1)
the maintenance of interstate order and (2) the advancement
of the forum state's interest. See In re Baycol
Prods. Litig., 218 F.R.D. 197, 207 (D. Minn. 2003)
(stating that only two factors in Minnesota's usual
five-factor test apply to the resolution of choice-of-law
issues arising under tort law) (citing Nodak Mut. Ins.
Co. v. Am. Family Mut. Ins. Co., 604 N.W.2d 91, 94-96
(Minn. 2000)). With respect to the first factor, the court
should look to the state with “the most significant
contacts with the facts relevant to the litigation.”
Id. The second factor requires the court to consider
“the state law in which the plaintiff lives and in
which the injury occurred.” See, e.g., In re
Baycol, 218 F.R.D. at 207 (“[A]s the injury
occurred in the state of plaintiff's residence, the
substantive law of the state of plaintiff's residence
should be applied to their claims.”); Foster v. St.
Jude Med., Inc., 229 F.R.D. 599, 605 (D. Minn. 2005)
(“[P]roper consideration of Minnesota's
choice-of-law factors reveals that the law of the state where
the [d]evice was implanted would apply to Plaintiffs'
[products liability] claims.”).
the plaintiff resides in Illinois, underwent implantation
surgery in Illinois, and received follow-up medical care in
Illinois. Accordingly, I will apply Illinois' substantive
law to this case.