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. 138] 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
action involves Louisiana co-plaintiffs, one of whom was
implanted with TVT-Obturator (“TVT-O”) and
Prolift, mesh products manufactured by Ethicon. Compl. [ECF
No. 74] ¶¶ 1-9. 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. 193, In re Ethicon, Inc. Pelvic Repair Sys.
Prods. Liab. Litig., No. 2:12-md-002327, Aug. 19, 2015,
The plaintiffs' case was selected as an “Ethicon
Wave 1 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, as does this court, that Louisiana law applies
to the plaintiffs' claims. To determine the applicable
state law for a dispositive motion, I generally refer to the
choice-of-law rules of the jurisdiction where the plaintiffs
first filed their claim. See In re Air Disaster at
Ramstein Air Base, Ger., 81 F.3d 570, 576 (5th Cir.
1996). The plaintiffs originally filed this action in
Louisiana. Thus, the choice-of-law principles of Louisiana
guide this court's choice-of-law analysis.
Louisiana law, a tort claim “is governed by the law of
the state whose policies would be most seriously impaired if
its laws were not applied” to the claim. La. Civ. Code
Ann. art. 3542 (listing factors such as place of injury,
residence of parties, and the state in which the relationship
between parties was centered to determine the appropriate
state law). The plaintiffs reside in Louisiana, Ms. Shively
was implanted with the product at issue in Louisiana, and her
alleged injuries and follow-up care occurred in Louisiana.
Accordingly, I will apply Louisiana's substantive law to
plaintiffs argue they are entitled to summary judgment on
“[m]any, if not most” of Ethicon's
affirmative defenses contained in the Master Answer and Jury
Demand of Defendant Ethicon, Inc. to First Amended Master
Complaint (“Ethicon's Master
Answer”). Mem. Supp. Mot. Partial Summ. J. 1 [ECF
No. 139]. The plaintiffs argue that their Motion should be
granted because “these separate defenses are generic,
not supported by the facts or evidence, and have absolutely
no basis for being raised in Ms. Shively's case.”
Id. Ethicon agrees that this court should dismiss a
number of the affirmative defenses listed in its Master
Answer because they do not apply to the particulars of Ms.
Shively's case, and Ethicon withdraws the defenses
contained in the following paragraphs of Ethicon's Master
Answer: 3, 4, 5, 6, ...