United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT)
R. GOODWIN, UNITED STATES DISTRICT JUDGE.
before the court is the Motion for Summary Judgment [ECF No.
19] filed by defendant Boston Scientific Corporation
(“BSC”). Also pending is the Plaintiff's
Motion to Replace Her Response in Opposition to
Defendant's Motion for Summary Judgment [ECF No. 26]. BSC
has not responded to the plaintiff's Motion, and the time
for responding has expired. Thus, both Motions are ripe for
adjudication. As set forth below, the Motion to Replace
Response [ECF No. 26] is GRANTED, and the
Motion for Summary Judgment [ECF No. 19] is GRANTED
in part and DENIED in part.
action involves a Florida plaintiff who was implanted with
the Obtryx Transobturator Mid-Urethral Sling System and the
Pinnacle Pelvic Floor Repair Kit, mesh products manufactured
by BSC, on February 17, 2009 in Orlando, Florida. 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 six remaining active
MDLs, there are nearly 14, 000 cases currently pending,
approximately 2700 of which are in the BSC MDL, MDL No. 2326.
effort to manage this MDL efficiently and effectively, I
decided to conduct pretrial discovery and motions practice on
an individualized basis. To this end, I selected certain
cases to become part of a “wave” of cases to be
prepared for trial and, if necessary, remanded. I enter a
docket control order subjecting each active case in the wave
to the same scheduling deadlines, rules regarding motion
practice, and limitations on discovery. See, e.g.,
Pretrial Order (“PTO”) # 165, In re Bos. Sci.
Corp. Pelvic Repair Sys. Prods. Liab. Litig., No.
2:12-md-02326, June 21, 2017,
instant case was selected as part of BSC Wave 3.
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. Pollard v. United States, 166 Fed.Appx. 674,
678 (4th Cir. 2006) (citing Celotex, Corp., 477 U.S.
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
parties agree that Florida choice-of-law principles apply to
this case and that these principles compel the application of
Florida substantive law to the plaintiff's claims.
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 ...