United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court are all remaining pretrial motions. All are
ripe for adjudication.
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
58, 000 cases currently pending, approximately 7, 000 of
which are in the Bard MDL, MDL 2187. In an effort to
efficiently and effectively manage this MDL, I 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 Daubert motions
and summary judgment motions, among other things), it can
then be promptly transferred or remanded to the appropriate
district for trial. To this end, I ordered the plaintiffs and
defendant to each select 50 cases, which would then become
part of a “wave” of cases to be prepared for
trial and, if necessary, remanded. See Pretrial
Order (“PTO”) # 102, No. 2:10-md-2187 [ECF No.
729]. This selection process was completed twice, creating
two waves of 100 cases, Wave 1 and Wave 2. Thereafter, I
entered orders on subsequent waves. Ms. Garcia's case was
selected as a Wave 1 case by the plaintiffs. PTO # 118, No.
2:10-md-2187 [ECF No. 841].
being given a chance to do so, the plaintiff failed to
respond to Bard's Motions, and the court, accordingly,
considers the Motions unopposed. A court does not, however,
automatically grant an unopposed motion for summary judgment.
See Fed.R.Civ.P. 56(e). The Fourth Circuit has
[I]n considering a motion for summary judgment, the district
court “must review the motion, even if
unopposed, and determine from what it has before it whether
the moving party is entitled to summary judgment as a matter
of law.” Custer v. Pan Am. Life Ins. Co., 12
F.3d 410, 416 (4th Cir.1993) (emphasis added).
“Although the failure of a party to respond to a
summary judgment motion may leave uncontroverted those facts
established by the motion, ” the district court must
still proceed with the facts it has before it and determine
whether the moving party is entitled to judgment as a matter
of law based on those uncontroverted facts. Id.
Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403,
409 n.8 (4th Cir. 2010).
Choice of Law
28 U.S.C. § 1407, this court has authority to rule on
pretrial motions in MDL cases. To determine the applicable
state law for a dispositive motion, the court generally
refers 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); In re Air Crash Disaster Near Chi.,
Ill., 644 F.2d 594, 610 (7th Cir. 1981); In re
Digitek Prods. Liab. Litig., MDL No. 2:08-md-01968, 2010
WL 2102330, at *7 (S.D. W.Va. May 25, 2010).
plaintiff files her claim directly into the MDL in the
Southern District of West Virginia, as the plaintiff did
here, I consult the choice-of-law rules of the state in which
the implantation surgery took place-in this case, Texas.
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, I 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.”).
principles compel application of Texas law. 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 plaintiff resides in Texas, and her
implantation surgery occurred in Texas. Texas 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 Texas substantive law to this case.