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 Based
upon Bankruptcy Judicial Estoppel [ECF No. 77] (“Motion
for Summary Judgment”) filed by defendants Ethicon,
Inc. and Johnson & Johnson (collectively,
“Ethicon”). As set forth below, Ethicon's
Motion is DENIED without prejudice.
action involves an Illinois plaintiff who was implanted with
a mesh product manufactured by Ethicon, Tension-free Vaginal
Tape (“TVT”), on January 14, 2010, at Heartland
Regional Medical Center, Marion, Illinois, by Dr. Scott A.
Joyner. Am. Short Form Compl. [ECF No. 25] ¶¶ 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
and stress urinary incontinence. In the seven MDLs, there are
approximately 45, 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. 193, In re Ethicon, Inc. Pelvic Repair Sys.
Prods. Liab. Litig., No. 2:12-md-002327, Aug. 19, 2015,
The plaintiff's case was selected as an “Ethicon
Wave 1 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).
argues it is entitled to summary judgment because Ms. Holmes
lacks standing or should be judicially estopped from bringing
her MDL claims because she did not properly disclose or
schedule the claims during her Chapter 7 and Chapter 13
bankruptcy proceedings in the United States Bankruptcy Court
for the Southern District of Illinois. Development of these
issues is best left to the district court where the
bankruptcy was filed. That court, through the withdrawal or
referral process, and with the debtor's counsel resident
in that district, will have the necessary tools at its
disposal to fully develop the record on this matter and
secure any necessary rulings or further helpful information
from the Article I bankruptcy court. The parties in this case
have agreed that proper venue resides in the United States
District Court for the Southern District of Illinois. Thus,
Ethicon's Motion is DENIED without
prejudice so that Ethicon may raise these issues
after this case is transferred to the local district court.
reasons discussed above, the court ORDERS
that Ethicon's Motion for Summary Judgment [ECF No. 77]
is DENIED without prejudice. The court
DIRECTS the Clerk to send a copy of ...