United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (PLAINTIFFS' MOTION
FOR PARTIAL SUMMARY JUDGMENT)
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the plaintiffs' Motion for Partial
Summary Judgment [ECF No. 64] wherein the plaintiffs move for
partial summary judgment on various affirmative defenses
raised by defendants Ethicon, Inc. and Johnson & Johnson
(collectively, “Ethicon”). As set forth below,
the plaintiffs' Motion is GRANTED in
part and DENIED in part.
action involves Texas co-plaintiffs, one of whom was
implanted with a mesh product manufactured by Ethicon, the
Gynecare Tension-free Vaginal Tape-SECUR
(“TVT-S”) on August 25, 2006. Am. Short Form
Compl. [ECF No. 13] ¶¶ 1- 12. The 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
60, 000 cases currently pending, nearly 28, 000 of which are
in the Ethicon MDL, MDL 2327.
effort to efficiently and effectively manage this massive
MDL, the court 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 summary judgment motions, among other things), it can
then be promptly transferred or remanded to the appropriate
district for trial. To this end, the court ordered the
plaintiffs and defendants to submit a joint list of 200 of
the oldest cases in the Ethicon MDL that name only Ethicon,
Inc., Ethicon, LLC, and/or Johnson & Johnson. These cases
became part of a “wave” of cases to be prepared
for trial and, if necessary, remanded. See Pretrial
Order No. 206, In re Ethicon, Inc. Pelvic Repair Sys.
Prods. Liab. Litig., No. 2:12-md-002327, Nov. 20, 2015,
The plaintiffs' case was selected as an “Ethicon
Wave 2 case.”
may use partial summary judgment to dispose of affirmative
defenses. Int'l Ship Repair & Marine Servs., Inc.
v. St. Paul Fire & Marine Ins. Co., 944 F.Supp. 886,
891 (M.D. Fla. 1996). To obtain summary judgment, the moving
party must show that there is no genuine dispute as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a).
In considering a motion for summary judgment, the court will
not “weigh the evidence and determine the truth of the
matter.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). Instead, the court will draw any
permissible inference from the underlying facts in the light
most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
the court will view all underlying facts and inferences in
the light most favorable to the nonmoving party, the
nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a
verdict” in his or her favor. Anderson, 477
U.S. at 256. Summary judgment is appropriate when the
nonmoving party has the burden of proof on an essential
element of his or her case and does not make, after adequate
time for discovery, a showing sufficient to establish that
element. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The nonmoving party must satisfy this burden
of proof by offering more than a mere “scintilla of
evidence” in support of his or her position.
Anderson, 477 U.S. at 252. Likewise, conclusory
allegations or unsupported speculation, without more, are
insufficient to preclude the granting of a summary judgment
motion. See Dash v. Mayweather, 731 F.3d 303, 311
(4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105
F.3d 188, 191 (4th Cir. 1997).
Choice of Law
plaintiffs originally filed their claim the Southern District
of Texas. See Compl. [ECF No. 1]. Thus, the
choice-of-law principles of Texas guide the court's
choice-of-law analysis. See Klaxon Co. v. Stentor Elect.
Mfg. Co., 313 U.S. 487, 496 (1941).
parties agree, as does the court, that these principles
compel application of Texas substantive law to the
plaintiffs' claims. In tort actions, Texas adheres to the
Restatement (Second) of Conflict of Laws (Am. Law Inst.
1971). Gutierrez v. Collins, 583 S.W.2d 312, 318
(Tex. 1979). Under section 145 of the Restatement, the court
must apply the law of the state with the most
“significant relationship to the occurrence and the
parties.” Here, the plaintiffs reside in Texas, and Ms.
Higgins' implantation surgery occurred in Texas. Am.
Short Form Compl. ¶ 11. Texas has a strong interest in
resolving tort actions brought by its citizens for injuries
arising from conduct alleged to have occurred within its
territorial jurisdiction. Thus, I will apply Texas
substantive law to this case.
plaintiffs argue they are entitled to summary judgment on the
defendants' affirmative defenses related to ¶¶
4, 5, 32, 36, 41-45, 49-52, 54, 56-58, and 61 of the Master
Answer and Jury Demand of Defendant Ethicon, Inc. to First
Amended Master Complaint (“Ethicon's Master
Answer”) [ECF No. 265]. Mem. Supp. Mot. Partial Summ.
J., at 3 [ECF No. 65]. The plaintiffs argue that their Motion
should be granted because the defenses are without
evidentiary support. Pltfs.' Mot. Partial Summ. J. 1-2
[ECF No. 64]. Ethicon withdrew the defenses contained in
¶¶ 4, 36, 41, 43, 44, 45, 49, 50, 52, 56, ...