United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (Defendants' Motion
for Summary Judgment)
R. Goodwin United State District Judge
before the court is the Motion for Summary Judgment [ECF No.
51] filed by defendants Ethicon, Inc. and Johnson &
Johnson (collectively, “Ethicon”). As set forth
below, Ethicon's Motion is GRANTED in
part and DENIED in part.
action involves a Washington State plaintiff who was
implanted with a mesh product manufactured by Ethicon,
Tension-free Vaginal Tape (“TVT”), on March 1,
2005, at Valley Medical Center, Renton, Washington, by Dr.
Hunter A. McKay. Am. Short Form Compl. [ECF No. 12]
¶¶ 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 approximately 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 Washington choice-of-law
principles apply to this case and that these principles
compel the application of Washington law to the
plaintiff's substantive claims. In a footnote, Ethicon
asserts that New Jersey law applies to the issue of punitive
damages; the plaintiff does not respond to this assertion.
Here, I need not decide what law applies to punitive damages
at this time because Ethicon does not directly challenge
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. Bos. Sci. Corp., 2:12-cv-05762, 2014
WL 202787, at *4 (S.D. W.Va. Jan. 17, 2014). Here, the
plaintiff filed her initial complaint directly in the
Southern District of West Virginia, Compl. [ECF No. 1], and
her implant surgery took place in Washington. Thus, the
choice-of-law principles of Washington guide this court's
law employs “the most significant relationship
test” to determine which state's substantive law to
apply in a tort action. Tilden-Coil Constructors, Inc. v.
Landmark Am. Ins. Co., 721 F.Supp.2d 1007, 1016 (W.D.
Wash. 2010). Under this test, the court must evaluate the
contacts of each interested state and determine which state
has the most significant contacts with the lawsuit.
Id. In doing so, the court considers relevant
contacts including: “(a) the place where the injury
occurred; (b) the place where the conduct causing the injury
occurred; (c) the domicil, residence, nationality, place of
incorporation, and place of business of the parties; and (d)
the place where the relationship, if any, between the parties
is centered. Id. (citing Restatement (Second) of
Conflict of Laws § 145 (Am. Law Inst. 1971)). Here, the
plaintiff is a resident of Washington, was implanted with the
product at issue in Washington, and the alleged injuries and
follow-up care occurred in Washington. Accordingly, I will
apply Washington's substantive law to this case.