United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DEFENDANT'S MOTION
FOR PARTIAL SUMMARY JUDGMENT)
R. GOODWIN, UNITED STATES DISTRICT JUDGE
before the court is the Motion for Partial Summary Judgment
(“Motion”) [ECF No. 19], filed by defendant C. R.
Bard, Inc. (“Bard”) on September 21, 2017.
Plaintiff Stephanie Nall filed an Opposition to the Motion on
October 5, 2017 [ECF No. 23] and on October 12, 2017, Bard
filed a Reply [ECF No. 25]. As set forth below, the Motion is
GRANTED in part, DENIED in
part, and RESERVED in part.
This action involves an Oklahoma plaintiff implanted with the
Align Urethral Support System and the Align TO Urethral
Support System, mesh products manufactured by Bard, on
October 20, 2011 in Columbia, Missouri. Short Form Compl.
[ECF No. 1] ¶¶ 1-12. This case resides in one of
seven MDLs assigned to me by the Judicial Panel on
Multidistrict Litigation (“MDL”) 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
28, 000 cases currently pending, approximately 3, 000 of
which are in the C. R. Bard, Inc. MDL, MDL No. 2187.
effort to manage the massive Bard MDL efficiently and
effectively, the court decided to conduct pretrial discovery
and motions practice on an individualized basis. To this end,
I ordered the plaintiffs and defendants to submit a joint
list of remaining cases in the Bard MDL, MDL 2187, with
claims against Bard and other defendants where counsel has at
least 20 cases in the Bard MDL. The list included nearly 3,
000 cases. From these cases, I selected 333 cases to become
part of a “wave” of cases to be prepared for
trial and, if necessary, remanded. See Pretrial
Order No. 236, In re C. R. Bard, Inc. Pelvic Repair Sys.
Prods. Liab. Litig., No. 2:10md-02187, Jan. 27, 2017,
https://www.wvsd.uscourts.gov/MDL/2187/orders.html. Upon the
creation of a wave, a docket control order subjects each
active case in the wave to the same scheduling deadlines,
rules regarding motion practice, and limitations on
discovery. I selected the instant civil action as a Wave 4
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).
“party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). To discharge this burden, the
moving party may produce an affidavit to demonstrate the
absence of a genuine issue of material fact. See Id.
The moving party, however, is not required to do so and may
discharge this burden “by ‘showing'-that is,
pointing out to the district court-that there is an absence
of evidence to support the nonmoving party's case.”
Id. at 325; see also Pumphrey v. C.R. Bard,
Inc., 906 F.Supp. 334, 336 (N.D. W.Va. 1995). If the
moving party sufficiently points out to the court those
portions of the record that show that there is an absence of
evidence to support the nonmoving party's case, the
burden shifts to the nonmoving party to come forward with
record evidence establishing a genuine issue of material
fact. Po lard v. United States, 166
Fed.Appx. 674, 678 (4th Cir. 2006) (citing Celotex,
Corp., 477 U.S. at 325).
the burden shift, the nonmoving party 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. 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. Id. at 252. Likewise, conclusory
allegations or unsupported speculations, 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). Summary judgment is therefore
appropriate when, after adequate time for discovery, the
moving party first discharges the initial burden and then the
nonmoving party does not make a showing sufficient to
establish a genuine issue of material fact. Celotex
Corp., 477 U.S. at 322-23.
Choice of Law The plaintiff does not contest
Bard's contention that Missouri choice-of-law principles
apply to this case and that these principles compel the
application of Missouri substantive law to the
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
re Temporomandibular Joint (TMJ) Implants Prods. Liab.
Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (citations
omitted). If a plaintiff files her claim directly into the
MDL in the Southern District of West Virginia, as the
plaintiff did in this case, the court consults the
choice-of-law rules of the state where the plaintiff was
implanted with the product. See Sanchez v. Boston
Scientific Corp., 2:12-cv-05762, 2014 WL 202787, at *4
(S.D. W.Va. Jan. 17, 2014) (“For cases that originate
elsewhere and are directly filed into the MDL, the court will
follow the better-reasoned authority that applies the
choice-of-law rules of the originating jurisdiction, which in
our case is the state in which the plaintiff was ...