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McFolling v. Boston Scientific Corp.

United States District Court, S.D. West Virginia, Charleston Division

July 27, 2018

MARLENE McFOLLING, Plaintiff,
v.
BOSTON SCIENTIFIC CORPORATION, Defendant.

          MEMORANDUM OPINION AND ORDER (DEFENDANT'S MOTION FOR SUMMARY JUDGMENT)

          JOSEPH R. GOODWIN, UNITED STATES DISTRICT JUDGE.

         Pending 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.

         I. Background

         This 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.

         In an 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, http://www.wvsd.uscourts.gov/MDL/boston/orders.html. The instant case was selected as part of BSC Wave 3.

         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).

         The “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. at 325).

         Should 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.

         B. Choice of Law

         The 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.

         Under 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 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 ...

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