United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT)
R. Goodwin Judge.
before the court is the Motion for Summary Judgment [ECF No.
53] 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 an Illinois plaintiff who was implanted with
a mesh product manufactured by Ethicon, Tension-free Vaginal
Tape (“TVT”), on March 19, 2010, at Memorial
Hospital, Belleville, Illinois, by Dr. Sekou Kelsey. Compl.
[ECF No. 2] ¶¶ 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. 210, In re Ethicon, Inc. Pelvic Repair Sys.
Prods. Liab. Litig., No. 2:12-md-002327, Dec. 18, 2015,
The plaintiff's case was selected as an “Ethicon
Wave 3 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
parties appear to 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. To determine the applicable state law for
a dispositive motion, I generally refer to the choice-of-law
rules of the jurisdiction where a 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. Boston
Scientific 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 Southern District of Illinois.
Compl. Thus, the choice-of-law principles of Illinois guide
this court's choice-of-law analysis.
is the plaintiff's state of residence, where the TVT
implant surgery took place, and where the 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 at this time what law
applies to punitive damages because Ethicon does not directly
challenge punitive damages.
argues it is entitled to summary judgment because the
relevant statute of limitations bars certain claims. Ethicon
also argues it is entitled to summary judgment because the