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In re Ethicon, Inc. Pelvic Repair System Products Liability Litigation

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

July 18, 2017

Ethicon, Inc., et al. THIS DOCUMENT RELATES TO Manczur, Civil Action No. 2:13-cv-01775



         Pending 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.

         I. Background

         This 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. 10].

         II. Legal Standards

         A. Rule 25

         Rule 25 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 dismissed.

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. 5(b)(1).

         Whether 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 remaining parties.”).

         B. 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. Manczur underwent implantation surgery in Colorado. Thus, the choice-of-law principles of Colorado guide the court's choice-of-law analysis.

         Colorado 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.

         III. ...

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