United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (PLAINTIFF'S MOTION
FOR PARTIAL SUMMARY JUDGMENT)
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
before the court is the plaintiff's Motion for Partial
Summary Judgment [ECF No. 96] wherein the plaintiff moves for
partial summary judgment on various affirmative defenses
raised by defendants Ethicon, Inc. and Johnson & Johnson
(collectively, “Ethicon”). As set forth below,
the plaintiff's Motion is GRANTED in
part and DENIED in part.
action involves a Kentucky plaintiff who was implanted with
Tension-free Vaginal Tape (“TVT”),  a mesh product
manufactured by Ethicon, by Dr. Dwight Pridham on March 24,
2009, at Norton Suburban Hospital in Louisville, Kentucky.
Am. Short Form Compl. [ECF No. 25] ¶¶ 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. 139]. In the
seven MDLs, there are approximately 29, 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. 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.”
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 plaintiff's substantive 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.”); see also 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 ...