United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DEFENDANTS' MOTIONS
FOR SUMMARY JUDGMENT)
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
before the court is a Motion for Summary Judgment Based on
the Statute of Limitations [ECF No. 56] and a Motion for
Summary Judgment [ECF No. 77] both filed by defendants
Ethicon, Inc. and Johnson & Johnson (collectively,
“Ethicon”). As set forth below, Ethicon's
Motion Based on the Statute of Limitations [ECF No. 56] is
DENIED and Ethicon's Motion for Summary
Judgment [ECF No. 77] is GRANTED in part and
DENIED in part.
action involves Arkansas co-plaintiffs, one of whom was
implanted with Gynecare Tension-free Vaginal Tape-SECUR
(“TVT-S”), a mesh product manufactured by
Ethicon, on August 8, 2008, at the University Hospital of
Arkansas in Little Rock, Arkansas. Am. Short Form Compl. [ECF
No. 17] ¶¶ 1-12. The case resides in one of seven
MDLs assigned to the Honorable Joseph R. Goodwin 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”). This individual case is one of a group
of cases that the Clerk of the Court reassigned to me on
November 22, 2016. [ECF No. 96]. In the seven MDLs, there are
approximately 28, 000 cases currently pending, approximately
17, 000 of which are in the Ethicon MDL, MDL 2327.
to the reassignment, in an effort to efficiently and
effectively manage the massive Ethicon MDL, Judge Goodwin
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), the court can promptly transfer
or remand the case to the appropriate district for trial. To
this end, Judge Goodwin 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. 206,
In re Ethicon, Inc. Pelvic Repair Sys. Prods. Liab.
Litig., No. 2:12-md-02327, Nov. 20, 2015,
The plaintiffs' case was selected as an “Ethicon
Wave 2 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).
Choice of Law
parties agree that Arkansas choice-of-law principles apply to
this case and that these principles compel the application of
Arkansas law to the plaintiffs' claims.
28 U.S.C. § 1407, this court has authority to rule on
pretrial motions in MDL cases. The choice of law for these
pretrial motions depends on whether they concern federal or
When analyzing questions of federal law, the transferee court
should apply the law of the circuit in which it is located.
When considering questions of state law, however, the
transferee court must apply the state law that would have
applied to the individual cases had they not been transferred
In re Temporomandibular Joint (TMJ) Implants Prods. Liab.
Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (citations
omitted). To determine the applicable state law for a
dispositive motion, the court generally refers 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)
(“Where a transferee court presides over several
diversity actions consolidated under the multidistrict rules,
the choice of law rules of each jurisdiction in which the
transferred actions were originally filed must be
applied.”); see also In re Air Crash Disaster Near