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 Plaintiffs' Motion for Partial
Summary Judgment [ECF No. 69] wherein plaintiffs Nancy
Smallwood and Leon Smallwood, Sr. seek partial summary
judgment as to certain affirmative defenses raised by
defendants Ethicon, Inc. and Johnson & Johnson
(collectively, “Ethicon”) that are based on the
purported negligence of Ms. Smallwood's physicians. For
the reasons set forth below, Plaintiffs' Motion is
action involves Kentucky co-plaintiffs, one of whom was
implanted with Prolift and Tension-free Vaginal Tape-Secur
(“TVT-S”), two mesh products manufactured by
Ethicon, by Dr. Velupilla Wingakumar at Knox County Hospital
in Barbourville, Kentucky. Second Am. Short Form Compl. [ECF
No. 28] ¶¶ 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. 83]. In the seven MDLs, there are
approximately 28, 000 cases currently pending, nearly 17, 000
of which are in the Ethicon MDL, MDL 2327.
to the reassignment, in an effort to manage the massive
Ethicon MDL efficiently and effectively, Judge Goodwin
decided to conduct pretrial discovery and motions practice on
an individualized basis. 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,
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. The court selected this case
as an “Ethicon Wave 2 case.”
may dispose of affirmative defenses by summary judgment.
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 alleged 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). Notwithstanding, the nonmoving
party 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.
judgment is appropriate when the nonmoving party does not
make, after adequate time for discovery, a showing sufficient
to establish an essential element of his or her case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). In other words, the nonmoving party must offer 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 speculations,
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 product
about which Plaintiff is making a claim was implanted.See
Sanchez v. Bos. Sci. Corp., 2:12-cv-05762, 2014 WL
202787, at *4 (S.D. ...