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. Allen'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.,
III, 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 Northern District of Iowa. Therefore, I use
Iowa's choice-of-law rules to determine which state's
law to apply to this case. For tort claims, Iowa generally
applies the Restatement (Second) of Conflict of Laws (Am. Law
Inst. 1971). Veasley v. CRST Int'l, Inc., 553
N.W.2d 896, 897-98 (Iowa 1996). 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 Iowa, and the product was implanted in
Iowa. The parties agree, as do I, that Iowa law applies to
this case. Accordingly, I will apply Iowa law.
Bard's Motion for Summary Judgment [ECF No. 59]
Motion for Summary Judgment [ECF No. 59] is GRANTED in part
as to the following conceded claims: manufacturing defect.
reasons appearing to the court, Bard's Motion for Summary
Judgment [ECF No. 59] is also GRANTED in part as to the
following claims: ...