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
(“MDL”) 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 C. R. Bard, Inc. MDL, MDL No. 2187. In an
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, 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. Bryant's case was
selected as a Wave 1 case by the plaintiffs. PTO # 118, No.
2:10-md-2187 [ECF No. 841].
obtain summary judgment, “the movant must show that
there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In turn, to avoid summary judgment, the
nonmovant must offer some “concrete evidence from which
a reasonable juror could return a verdict” in his or
her favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986).
Choice of Law
28 U.S.C. § 1407, this court has authority to rule on
pretrial motions in MDL cases. The choice of law for these
pretrial motions depends on whether they concern federal or
When analyzing questions of federal law, the transferee court
should apply the law of the circuit in which it is located.
When considering questions of state law, however, the
transferee court must apply the state law that would have
applied to the individual cases had they not been transferred
In re Temporomandibular Joint (TMJ) Implants Prods. Liab.
Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (internal
citations omitted). 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)
(“Where a transferee court presides over several
diversity actions consolidated under the multidistrict rules,
the choice of law rules of each jurisdiction in which the
transferred actions were originally filed must be
applied.”); 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. 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.”). Ms. Bryant filed this case directly into
the MDL; she was implanted with the device in Florida. Thus,
the choice-of-law principles of Florida guide this
court's choice-of-law analysis.
tort claims, Florida generally applies the Restatement
(Second) of Conflict of Laws (Am. Law Inst. 1971). Bishop
v. Fla. Specialty Paint Co., 389 So.2d 999, 1001 (Fla.
1980). Under section 145 of the Restatement (Second) of
Conflict of Laws, 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 Florida, and the
product was implanted in Florida. Thus, I apply Florida's