United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (PLAINTIFFS' MOTION
FOR PARTIAL SUMMARY JUDGMENT)
C. CHAMBERS UNITED STATES DISTRICT JUDGE
before the court is the plaintiffs' Motion for Partial
Summary Judgment [ECF No. 71] wherein the plaintiffs move for
partial summary judgment on various affirmative defenses
raised by defendants Ethicon, Inc. and Johnson & Johnson
(collectively, “Ethicon”). As set forth below,
the plaintiffs' Motion is GRANTED.
action involves Kentucky co-plaintiffs, one of whom was
implanted with a mesh product manufactured by Ethicon,
Tension-free Vaginal Tape (“TVT”), on January 20,
2004, at St. Elizabeth Medical Center, Edgewood, Kentucky, by
Dr. Edward R. Flicker. 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. 86]. 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), it can then be promptly
transferred or remanded 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-002327, Nov. 20, 2015,
The plaintiffs' case was selected as an “Ethicon
Wave 2 case.”
may use partial summary judgment to dispose of affirmative
defenses. Int'l Ship Repair & Marine Servs., Inc.
v. St. Paul Fire & Marine Ins. Co., 944 F.Supp. 886,
891 (M.D. Fla. 1996). To 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
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 Kentucky choice-of-law principles apply to
this case and that these principles compel the application of
Kentucky 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
RamsteinAir 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.”); In re Air Crash Disaster
Near Chi., Ill., 644 F.2d 594, 610 (7th Cir. 1981);
In re Digitek Prods. Liab. Litig., MDL No.
2:08-md-01968, 2010 WL 2102330, at *7 (S.D. W.Va. May 25,
2010). If a plaintiff files her claim directly into the MDL
in the Southern District of West Virginia, however, I consult
the choice-of-law rules of the state in which the plaintiff
was implanted with the product. See Sanchez v. Bos. Sci.