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Allmon v. Ethicon, Inc.

United States District Court, S.D. West Virginia, Charleston Division

June 29, 2017

MARY ALLMON, Plaintiff,
ETHICON, INC., et al., Defendants.



         Pending before the court is the Motion for Partial Summary Judgment [ECF No. 49] 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.

         I. Background

         This action involves a Tennessee plaintiff who was implanted with mesh products manufactured by Ethicon, Prolift (“Prolift”) and Tension-free Vaginal Tape-Obturator (“TVT-O”), on September 15, 2009, at University of Tennessee Memorial Hospital, Knoxville, TN, by Dr. Robert F. Elder. Second Am. Short Form Compl. [ECF No. 38] ¶¶ 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 50, 000 cases currently pending, approximately 30, 000 of which are in the Ethicon MDL, MDL 2327.

         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, 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, available at The plaintiff's case was selected as an “Ethicon Wave 3 case.”

         II. Legal Standards

         A. Summary Judgment

         To 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 matte r.” 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).

         Although 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 C i r. 1 997).

         B. Choice of Law

         The parties agree that Tennessee choice-of-law principles apply to this case and that these principles compel the application of Tennessee 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. 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 Tennessee. Thus, the choice-of-law principles of Tennessee guide this court's choice-of-law analysis.

         Tennessee law employs a “most significant relationship test” to determine which state's substantive law to apply in a tort action. Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn. 1992). 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. (quoting Restatement (Second) of Conflict of Laws § 145 (Am. Law Inst. 1971)). Here, the plaintiff is a resident of Tennessee, was implanted with the products at issue in Tennessee, and the alleged injuries and follow-up care occurred in Tennessee. Accordingly, I will apply Tennessee's substantive law to this case.

         III. Analysis

         Ethicon argues it is entitled to partial summary judgment because the plaintiffs claims are ...

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