United States District Court, S.D. West Virginia, Charleston Division
DIANNE D. DAHL, Plaintiff,
C. R. BARD, INC., Defendant.
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. Dahl's case was
selected as a Wave 2 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 United States District Court
for the District of Minnesota. Therefore, I use
Minnesota's choice-of-law rules to determine which
state's law to apply to this case. The parties agree, as
does the court, that these principles compel application of
Wisconsin law to the plaintiff's claims. Minnesota
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. Here, that state is Wisconsin, where the
plaintiff resides and underwent implantation surgery. The
second factor, which requires the court to consider
“the state law in which the plaintiff lives and in
which the injury occurred, ” also weighs in favor of
applying Wisconsin law. 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.”). Accordingly, Wisconsin substantive law
governs this case.
Daubert Motions - Specific Causation
testimony is admissible if the expert is qualified and if his
or her expert testimony is reliable and relevant. Fed.R.Evid.
702; see also Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993). An expert may be qualified to offer
expert testimony based on his or her “knowledge, skill,
experience, training, or education.” Fed.R.Evid. 702.
context of specific causation expert opinions, the Fourth
Circuit has held that “a reliable differential
diagnosis provides a valid foundation for an expert
opinion.” Westberry v. Gislaved Gummi AB, 178
F.3d 257, 262-63 (4th Cir. 1999). “A differential
diagnosis that fails to take serious account of other
potential causes may be so lacking that it cannot provide a
reliable basis for an opinion on causation.”
Id. at 265. However, an expert's causation
opinions will not be excluded “because he or she has
failed to rule out every possible alternative cause of a
plaintiff's illness.” Id. At bottom, the
court has broad discretion to determine whether expert
testimony should be admitted or excluded. Cooper v. Smith
& Nephew, Inc., 259 F.3d 194, 200 (4th Cir. 2001).