United States District Court, S.D. West Virginia, Charleston Division
KIMBERLY K. BROMELAND, et al., Plaintiffs,
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. Bromeland'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 plaintiff did
here, I consult the choice-of-law rules of the state in which
the implantation surgery took place-in this case, Minnesota.
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.”).
parties agree, as does the court, that these principles
compel application of Minnesota law to the plaintiffs'
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)).
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 Minnesota, 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 Minnesota 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.”).
considered both factors in Minnesota's choice-of-law
test, I find that Minnesota law governs the plaintiffs'
substantive claims in this case.
Daubert Motions - ...