United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT)
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the Motion for Summary Judgment [ECF No.
48] filed by defendants Ethicon, Inc. and Johnson &
Johnson (collectively, “Ethicon”). As set forth
below, Ethicon's Motion is GRANTED in part and DENIED in
action involves a New York plaintiff who was implanted with a
mesh product manufactured by Ethicon, Tension-free Vaginal
Tape (“TVT”), on April 4, 2009, at Samaritan
Medical Center, Watertown, New York, by Dr. Elizabeth Lucal.
Am. Short Form Compl. [ECF No. 24] ¶¶ 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.”
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 (1986).
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
plaintiff files her claim directly into the MDL in the
Southern District of West Virginia, as Ms. Wilson did in this
case, the court consults the choice-of-law rules of the state
where the plaintiff was implanted with the product. 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,
the court 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.”). Ms. Wilson
underwent the TVT implantation surgery in New York. Thus, the
choice-of-law principles of New York guide the court's
parties agree, as does the court, that these principles
compel application of New York substantive law to the
plaintiff's claims. New York applies the doctrine of
lex loci delicti unless a party demonstrates
“special circumstances” that warrant a departure
from the general rule. Bader by Bader v. Purdom, 841
F.2d 38, 40 (2d Cir. 1988) (citing Neumeier v.
Kuehner, 286 N.E.2d 454, 458 (N.Y. 1972)). Here, no such
circumstances exist. The plaintiff resides in New York, and
her implantation surgery occurred in New York. Am. Short Form
Compl. ¶ 11. New York has a strong interest in resolving
tort actions brought by one of its citizens for injuries
arising from conduct alleged to have occurred within its
territorial jurisdiction. Thus, I will apply New York
substantive law to this case.
argues it is entitled to summary judgment because the
plaintiff's claims are ...