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. Chery'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).
plaintiff files her claim directly into the MDL in the
Southern District of West Virginia, as the plaintiffs did
here, I consult the choice-of-law rules of the state in which
the implantation surgery took place-in this case, Florida.
See Sanchez v. Bos. Sci. Corp., No. 2:12-cv-05762,
2014 WL 202787, at *4 (S.D. W.Va. Jan. 17, 2014) (“For
cases that originate elsewhere and are directly filed into
the MDL, I will follow the better-reasoned authority that
applies the choice-of-law rules of the originating
jurisdiction, which in our case is the state in which the
plaintiff was implanted with the product.”).
tort claims, Florida generally applies the Restatement
(Second) of Conflict of Laws (Am. Law Inst. 1971). Bishop
v. Fla. Specialty Paint Co., 389 So.2d 999, 1001 (Fla.
1980). Under section 145 of the Restatement (Second) of
Conflict of Laws, the court must apply the law of the state
with the most significant relationship to the occurrence and
the parties. Here, the plaintiff resides in Florida, and the
product was implanted in Florida. The parties agree, as do I,
that Florida law applies to this case. Accordingly, I will
apply Florida law.
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 ...