United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT)
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the Motion for Summary Judgment [ECF No.
48] filed by defendants Ethicon, Inc. and Johnson &
Johnson (collectively, “Ethicon”). The plaintiffs
have not responded, and this motion is ripe. As set forth
below, Ethicon's Motion is GRANTED in its entirety and
the plaintiffs' claims against Ethicon are DISMISSED with
action involves Louisiana co-plaintiffs, one of whom was
implanted with Tension-free Vaginal Tape (“TVT”),
a mesh product manufactured by Ethicon. Am. Short Form Compl.
[ECF No. 18] ¶¶ 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
50, 000 cases currently pending, approximately 30, 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 plaintiffs' 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).
being given a chance to do so, the plaintiffs failed to
respond, and the court, accordingly, considers the Motion for
Summary Judgment as an unopposed Motion. A court does not,
however, automatically grant an unopposed motion for summary
judgment. See Fed. R. Civ. P. 56(e). The Fourth
Circuit has directed:
[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
If a plaintiff files her claim directly into the MDL in the
Southern District of West Virginia, the court consults the
choice-of-law rules of the state where 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) (“For cases that originate
elsewhere and are directly filed into the MDL, the court 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. ...