United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE
before the court are all remaining pretrial motions. All are
ripe for adjudication.
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].
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).
Choice of Law
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).
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
Bard's Motion for Summary Judgment [ECF No. 51]
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.
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 ...