United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (PLAINTIFF 'S MOTION
FOR PARTIAL SUMMARY JUDGMENT)
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is the plaintiff's Motion for Partial
Summary Judgment [ECF No. 62] wherein the plaintiff moves for
partial summary judgment on various affirmative defenses
raised by defendants Ethicon, Inc. and Johnson & Johnson
(collectively, “Ethicon”). As set forth below,
the plaintiff's Motion is GRANTED in part and DENIED in
action involves an Illinois plaintiff who was implanted with
a mesh product manufactured by Ethicon, Tension-free Vaginal
Tape-Obturator (“TVT-O”), on November 13, 2008,
at Rush University Medical Center, Chicago, Illinois, by Drs.
Lev Elterman and Michael R. Abern. Am. Short Form Compl. [ECF
No. 45] ¶¶ 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 plaintiff's 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
parties agree that Illinois choice-of-law principles apply to
this case and that these principles compel the application of
Illinois law to the plaintiff's substantive claims.
Ethicon asserts that New Jersey law applies to the issue of
punitive damages; the plaintiff does not respond to this
determine the applicable state law for a dispositive motion,
I generally refer 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). If a plaintiff files her
claim directly into the MDL in the Southern District of West
Virginia, however, I consult the choice-of-law rules of the
state in which the plaintiff was implanted with the product.
See Sanchez v. Bos. Sci. Corp., 2:12-cv-05762, 2014
WL 202787, at *4 (S.D. W.Va. Jan. 17, 2014). Here, the
plaintiff filed her initial complaint in the Northern
District of Illinois. Compl. [ECF No. 1]. Thus, the
choice-of-law principles of Illinois guide this court's
is the plaintiff's state of residence, where the
plaintiff received her TVT implant surgery, and where her
claimed injuries occurred. For the reasons discussed in
Huskey v. Ethicon, Inc., I agree with the parties
that Illinois law applies to the plaintiff's substantive
claims. See Huskey v. Ethicon, Inc., 29 F.Supp.3d
736, 740- 41 (S.D. W.Va. 2014) (Illinois uses the
“most-significant-relationship” test and permits
dépeçage-a separate choice-of-law analysis for
each individual issue). In Huskey, I also found that
New Jersey law-rather than Illinois law-applied to the
Huskey plaintiffs' punitive damages claim.
Id. Here, I need not decide what law applies to
punitive damages at this time because Ethicon does not
directly challenge punitive damages.