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Zablocki v. C. R. Bard, Inc.

United States District Court, S.D. West Virginia, Charleston Division

March 21, 2017

DAWN ZABLOCKI, Plaintiff,
v.
C. R. BARD, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          JOSEPH R. GOODWIN, UNITED STATES DISTRICT JUDGE

         Pending before the court are all remaining pretrial motions. All are ripe for adjudication.

         I. Background

         This 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 58, 000 cases currently pending, approximately 7, 000 of which are in the Bard MDL, MDL 2187. In an effort to efficiently and effectively manage this MDL, I 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 Daubert motions and summary judgment motions, among other things), it can then be promptly transferred or remanded to the appropriate district for trial. To this end, I ordered the plaintiffs and defendant to each select 50 cases, which would then become part of a “wave” of cases to be prepared for trial and, if necessary, remanded. See Pretrial Order (“PTO”) # 102, No. 2:10-md-2187 [ECF No. 729]. This selection process was completed twice, creating two waves of 100 cases, Wave 1 and Wave 2. Thereafter, I entered orders on subsequent waves. Ms. Zablocki's case was selected as a Wave 1 case by the plaintiffs. PTO # 118, No. 2:10-md-2187 [ECF No. 841].

         II. Legal Standards

         a. Summary Judgment

         To obtain summary judgment, “the movant must show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In turn, to avoid summary judgment, the nonmovant must offer some “concrete evidence from which a reasonable juror could return a verdict” in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

         b. Choice of Law

         Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in MDL cases. To determine the applicable state law for a dispositive motion, the court generally refers 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); In re Air Crash Disaster Near Chi., Ill., 644 F.2d 594, 610 (7th Cir. 1981); In re Digitek Prods. Liab. Litig., MDL No. 2:08-md-01968, 2010 WL 2102330, at *7 (S.D. W.Va. May 25, 2010).

         This case was originally filed in the Northern District of Illinois. Therefore, I use Illinois's choice-of-law rules to determine which state's law to apply to this case. Illinois is the Plaintiff's state of residence, where the implant surgery took place, and where their claimed injuries occurred. For the reasons discussed in Jester v. C. R. Bard, I agree with the parties that Illinois law applies to the Plaintiff's substantive claims. Jester v. C. R. Bard, No. 2:13-cv-18843, 2016 WL 7045735, at *2 (S.D. W.Va. Dec. 2, 2016) (“Under [the-most significant-relationship] test, courts should consider the following factors: (1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation and business of the parties, and (4) the place where the relationship, if any, between the parties is centered.”).

         III. Discussion

         a. Bard's Motion for Summary Judgment [ECF No. 51]

         Bard's Motion for Summary Judgment [ECF No. 51] is GRANTED in part as to the following conceded claims: manufacturing defect, breach of express or implied warranty, or any violation of the Consumer Fraud and Deceptive Practices Act.

         Under Illinois law, “[a] product liability action asserting a claim based on negligence . . . falls within the framework of common law negligence.” Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 263 (Ill. 2007). “[A] plaintiff must establish the existence of a duty of care owed by the defendant, a ...


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