United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
Motion for Summary Judgment)
before the court is Defendant C.R. Bard, Inc.'s Motion
for Summary Judgment [ECF No. 15]. The plaintiff filed a
response [ECF No. 19], and the defendant filed a reply [ECF
No. 20]. The matter is ripe for adjudication. For the reasons
stated herein, the motion is GRANTED in part
and DENIED in part.
case involves a Nebraska plaintiff implanted with the Align
TO Urethral Support System, a mesh product manufactured by
C.R. Bard Inc. (“Bard”), on January 23, 2012 in
Omaha, Nebraska. Short Form Compl. ¶¶ 1-12 [ECF No.
1]. 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
24, 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 twenty cases in the Bard MDL. The list included nearly
3000 cases. From these cases, I selected 332 cases to become
part of a “wave” of cases to be prepared for
trial and, if necessary, remanded. See Pretrial
Order No. 244, In re C. R. Bard, Inc., Pelvic Repair Sys.
Prods. Liab. Litig., No. 2:10- md-02187, Mar. 3, 2017,
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 5
obtain summary judgment, the moving party must show that
there is no genuine issue 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 Felty v.
Graves Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.
1987); Ross v. Comm'ns Sate lite
Corp., 759 F.2d 355, 365 (4th Cir. 1985), abrogated
on other grounds, Price Waterhouse v. Hopkins,
490 U.S. 228 (1989).
Choice of Law
28 U.S.C. § 1407, this court has authority to rule on
pretrial motions in MDL cases. To determine the applicable
state law for a dispositive motion, the court generally
refers to the choice-of-law rules of the jurisdiction where
the plaintiff first filed her claim. See In re Air
Disaster at Ramstein Air Base, Ger., 81 F.3d 570, 576
(5th Cir. 1996); In re Air Crash Disaster Near Chi., I
l., 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 25,
plaintiff files her claim directly into the MDL in the
Southern District of West Virginia, as the plaintiff did
here, I consult the choice-of-law rules of the state in which
the implantation surgery took place-in this case, Nebraska.
See Sanchez v. Bos. Sci.Corp., No. 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, I 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 implanted with the product.”).
follows the “most significant relationship” test,
as set out in the Restatement (Second) of Conflicts of Laws
§ 146. Malena v. Marriott Int'l, Inc., 651
N.W.2d 850, 856 (Neb. 2002). Under § 146, a presumption
arises in favor of the choice of law rules of the place of
the injury unless another state “has a more significant
relationship to the parties and the occurrence with respect
to a particular issue.” Id. Here, the
plaintiff resides in Nebraska, she was implanted with the
product at issue in Nebraska, and her alleged injuries and
follow-up care took place in Nebraska. Therefore, the court
FINDS that the substantive law of Nebraska
governs the plaintiff's claims.