United States District Court, S.D. West Virginia, Charleston Division
IN RE COLOPLAST CORP. PELVIC SUPPORT SYSTEMS PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Janie Smith
Coloplast Corp. Civil Action No. 2:13-cv-15065
MEMORANDUM OPINION & ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
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
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
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.
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).
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.
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.
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
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 ...