United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
Ethicon, Inc., et al. THIS DOCUMENT RELATES TO Manczur, Civil Action No. 2:13-cv-01775
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is the Motion to Dismiss Under Rule 25(a)(1)
[ECF No. 18] filed by defendants Ethicon, Inc. and Johnson
& Johnson (collectively, “Ethicon”).
Plaintiffs' counsel has responded to the Motion, making
it ripe for decision. Resp. [ECF No. 20]. For the reasons
stated below, Ethicon's Motion [ECF No. 18] is GRANTED
and the plaintiffs' claims against Ethicon are DISMISSED.
action 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. This particular case
involves Colorado co-plaintiffs, one of whom, Ms. Manczur,
was implanted with Prolift, a mesh product manufactured by
Ethicon, at University of Colorado Hospital in Aurora,
Colorado. Am. Short Form Compl. [ECF No. 1] ¶¶
1-11. On February 5, 2014, the plaintiffs' counsel filed
a Suggestion of Death with this court, noting that Ms.
Manczur died on March 30, 2013. Suggestion of Death [ECF No.
governs the process for substituting or dismissing a case
after a plaintiff has died. See Fed. R. Civ. P. 25.
The rule provides:
If a party dies and the claim is not extinguished, the court
may order substitution of the proper party. A motion for
substitution may be made by any party or by the
decedent's successor or representative. If the motion is
not made within 90 days after service of a statement noting
the death, the action by or against the decedent must be
Fed. R. Civ. P. 25(a)(1). This rule also states that,
“[a] motion to substitute, together with a notice of
hearing, must be served on the parties as provided in Rule 5
and on nonparties as provided in Rule 4. A statement noting
death must be served in the same manner.” Fed.R.Civ.P.
25(a)(3). The above-mentioned 90-day clock does not begin to
run until the decedent's successors or representatives
are served with a statement noting death. See Farris v.
Lynchurg, 769 F.2d 958, 962 (4th Cir. 1985). If the
successor or representative is a party to the action, service
must be made on the party's attorney. Fed. Civ. P. R.
a claim is extinguished is determined by the substantive law
of the jurisdiction in which the cause of action arose.
See Robertson v. Wegmann, 436 U.S. 584, 587 n.3
(1991) (explaining that a claim is not extinguished if the
jurisdiction allows the action to survive a party's
death). Traditionally, state statutes expressly state whether
a claim survives a deceased party and to whom survivorship is
allowed. Id. at 589. If a case includes multiple
plaintiffs, the death of one plaintiff does not cause an
abatement of the claims for the remaining parties.
See Fed. R. Civ. P. 25(a)(2) (“After a
party's death, if the right sought to be enforced
survives only to or against the remaining parties, the action
does not abate, but proceeds in favor of or against the
Choice of Law
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. Manczur underwent implantation
surgery in Colorado. Thus, the choice-of-law principles of
Colorado guide the court's choice-of-law analysis.
follows the “most significant relationship” test,
as outlined in section 145 of the Restatement (Second) of
Conflict of Laws, in determining choice of law questions.
AE, Inc. v. Goodyear Tire & Rubber Co., 168 P.3d
507, 508 (Colo. 2007). Section 145 directs courts to consider
four factors: (1) the place where the injury occurred, (2)
the place where the conduct causing the injury occurred, (3)
the domicile of the parties, and (4) the place where the
parties' relationship is centered. Id. at 510.
Here, the implantation surgery that allegedly resulted in Ms.
Manczur's injuries took place in Colorado. Ms. Manczur
also resided in Colorado and received medical care for her
alleged injuries in Colorado. Accordingly, Colorado's
substantive law governs this case.