In re Coloplast Corp. Pelvic Support Systems Products Liability Litigation

          MEMORANDUM OPINION & ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE.

         Pending before the court is Coloplast Corp.'s Motion for Summary Judgment [ECF No. 20]. The plaintiff has not responded, and the time for responding has expired. Thus, the Motion is ripe for adjudication. For the reasons set forth below, the Motion is GRANTED in part and DENIED in part.

         I. Background

         This case resides in one of seven MDLs assigned to me 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 more than 25, 000 cases currently pending, approximately 150 of which are in the Coloplast Corp. (“Coloplast”) MDL, MDL 2387.

         On September 8, 2010, Dr. Beverly Fuller surgically implanted Ms. Smith with the Suspend-Tutoplast Processed Fascia Lata (“Fascia Lata”), a device distributed by Coloplast to treat SUI and to reconstruct the pelvic floor. Short Form Compl. ¶¶ 9- 12 [ECF No. 1]. Ms. Smith's surgery took place at Rogue Valley Medical Center in Medford, Oregon. Id. at ¶ 11. Ms. Smith does indicate that she was ever implanted with any other transvaginal mesh product.

         On March 19, 2013, Dr. Timothy Hutchings performed surgery on Ms. Smith to treat her vaginal pain. Def.'s Mot. for Summ. J. Ex. 7, at 2 [ECF No. 20-7] (“Hutchings Operative Report”). The surgery included “[r]emoval of vaginal mesh/foreign body/scar tissue.” Id. A pathology report from the surgery specifically identified the material removed from Ms. Smith as “[v]aginal synthetic mesh.” Def.'s Mot. for Summ. J. Ex. 8, at 2 [ECF No. 20-8] (“Pathology Report”) (emphasis added).

         Ms. Smith claims that as a result of the implantation of the Fascia Lata, she has experienced multiple complications. She adopts the following counts as alleged in the First Amended Master Long Form Complaint and Jury Demand (“Master Complaint”): I - negligence, II - strict liability design defect, III - strict liability manufacturing defect, IV - strict liability failure to warn, V - strict liability defective product, VI - breach of express warranty, VII - breach of implied warranty, VIII - fraudulent concealment, IX - constructive fraud, X - discovery rule and tolling, XI - negligent misrepresentation, XII - negligent infliction of emotional distress, XIII - violation of consumer protection laws, XIV - gross negligence, XV - unjust enrichment, and XVII - punitive damages. Id. at ¶ 13.

         According to the Master Complaint, Coloplast “designed, patented, manufactured, packaged, labeled, marketed, sold, and distributed a line of pelvic mesh products, ” one of which was an allograft, the Fascia Lata. First Am. Master Compl. ¶¶ 22-23 [ECF No. 49], In re Coloplast Corp., Pelvic Support Sys. Prods. Liab. Litig., No. 2:12-md-02387. Coloplast admits in its Joint Master Long Form Answer and Affirmative Defenses to Plaintiffs' First Amended Master Long Form Complaint and Jury Demand (“Master Answer”) that it “generally packaged, labeled, marketed, sold[, ] and distributed” such pelvic mesh devices. Master Answer ¶ 22 [ECF No. 62], In re Coloplast Corp., Pelvic Support Sys. Prods. Liab. Litig., No. 2:12-md-02387. The Fascia Lata device consists of human collagen from donated human tissue. See Def.'s Mot. for Summ. J. Ex. 9, at 2 [ECF No. 20-2] (“Package Insert”). The Fascia Lata is preserved such that it “retains the unidirectional and mechanical properties of native Fascia Lata, while providing the basic formative structure to support replacement by new endogenous tissue.” Id.

         II. Legal Standards

         a. Summary Judgment

         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 (1986).

         Although 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).

         b. Choice of Law

         Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in MDL cases such as this. The choice of law for these pretrial motions depends on whether they involve federal or state law. “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 for consolidation.” In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (citations omitted). In cases based on diversity jurisdiction, the choice-of-law rules to be used are those of the states where the actions were originally filed. See In re Air Disaster at Ramstein Air 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 ...