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 the defendants' Motion for Summary
Judgment [ECF No. 59] and defendants' Alternative Motion
for Summary Judgment [ECF No. 69]. The plaintiff, proceeding
pro se, opposed only the defendants' Motion for
Summary Judgment. See Resp. [ECF No. 62]. She did
not respond to the defendants' Alternative Motion for
Summary Judgment. The matter is now ripe for adjudication. As
set forth below, the defendants' Motion for Summary
Judgment [ECF No. 59] is DENIED as moot, the
defendants' Alternative Motion for Summary Judgment is
GRANTED in its entirety and the
plaintiff's claims against Ethicon are DISMISSED
case resides in one of seven MDLs assigned to the court 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”). In the seven MDLs, there are
approximately 29, 000 cases currently pending, approximately
17, 000 of which are in the Ethicon, Inc. and Johnson &
Johnson, Inc. (“Ethicon”) MDL, MDL 2327. 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.
to reassignment, in an effort to efficiently and effectively
manage this massive 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. 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 a 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).
being given a chance to do so, the plaintiff failed to
respond to the defendants' Alternative Motion for Summary
Judgment [ECF No. 69], and the court, accordingly, considers
the Motion unopposed. A court does not, however,
automatically grant an unopposed motion for summary judgment.
See Fed. R. Civ. P.56(e).
[I]n considering a motion for summary judgment, the district
court “must review the motion, even if
unopposed, and determine from what it has before it whether
the moving party is entitled to summary judgment as a matter
of law.” Custer v. Pan Am. Life Ins. Co., 12
F.3d 410, 416 (4th Cir.1993) (emphasis added).
“Although the failure of a party to respond to a
summary judgment motion may leave uncontroverted those facts
established by the motion, ” the district court must
still proceed with the facts it has before it and determine
whether the moving party is entitled to judgment as a matter
of law based on those uncontroverted facts. Id.
Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403,
409 n.8 (4th Cir. 2010).
Choice of Law
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 ...