United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DEFENDANTS' MOTION
FOR PARTIAL SUMMARY JUDGMENT)
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
before the court is the Motion for Partial Summary Judgment
[ECF No. 87] filed by defendants Ethicon, Inc. and Johnson
& Johnson (collectively, “Ethicon”). As set
forth below, Ethicon's Motion is GRANTED in
part and DENIED in part.
action involves a Georgia plaintiff who was implanted with
Tension-free Vaginal Tape-Obturator (“TVT-O”), a
mesh product manufactured by Ethicon, on December 21, 2011,
by Dr. Susanna Meredith at Meadows Regional Medical Center in
Vidalia, Georgia. 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. 123]. In the seven MDLs, there
are approximately 29, 000 cases currently pending,
approximately 17, 000 of which are in the Ethicon MDL, MDL
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. 193,
In re Ethicon, Inc. Pelvic Repair Sys. Prods. Liab.
Litig., No. 2:12-md-02327, 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).
Choice of Law
parties agree, as does this court, that Georgia choice-of-law
principles apply to this case and that these principles
compel the application of Georgia law to the plaintiff's
determine the applicable state law for a dispositive motion,
I generally refer to the choice-of-law rules of the
jurisdiction where the plaintiff first filed her claim.
See In re Air Disaster at Ramstein Air Base, Ger.,
81 F.3d 570, 576 (5th Cir. 1996). 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. Corp., No. 2:12-cv-05762,
2014 WL 202787, at *4 (S.D. W.Va. Jan. 17, 2014). Here, the
plaintiff filed her initial complaint directly into the MDL
in the Southern District of West Virginia. Compl. [ECF No.
1]. The implantation surgery occurred in Georgia. Thus, the
choice-of-law principles of Georgia guide this court's
Georgia law, tort cases “are governed by the rule of
lex loci delicti, which requires application of the
substantive law of the place where the tort or wrong
occurred.” Carroll Fullmer Logistics Corp. v.
Hines, 710 S.E.2d 888, 890 (Ga.Ct.App. 2011) (citing
Dowis v. Mud Slingers, Inc., 621 S.E.2d 413, 419
(Ga. 2005)). Here, the alleged wrong occurred in Georgia,
where the plaintiff was implanted with the allegedly
defective device. Thus, I apply Georgia's substantive law
to the claims in this case.