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Freire v. American Medical Systems, Inc.

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

April 11, 2019

ANGELINA FREIRE, et al., Plaintiffs,



         I. Introduction

         Pending before the court is a Motion for Summary Judgment [ECF No. 29] filed by Defendant American Medical Systems, Inc. (“AMS”). Also pending before the court is a Motion for Summary Judgment [ECF No. 44] filed by Tissue Science Laboratories Limited (“TSL”). For the reasons that follow, the Motions are GRANTED.

         II. Background

         This case is one of several thousand assigned to me by the Judicial Panel on Multidistrict Litigation. These cases involve the use of transvaginal surgical mesh to treat pelvic organ prolapse and urinary incontinence.

         In 2005, Plaintiff Angelina Freire (“Ms. Freire”) saw her primary care physician for treatment of urinary incontinence. Ms. Freire's physician referred her to an obstetrician/gynecologist who implanted her with an AMS SPARC Sling System[1] on December 5, 2005. Ms. Freire stated in her deposition that she began experiencing symptoms almost immediately after her SPARC implant. She explained in her Plaintiff Fact Sheet (“PFS”) that she immediately attributed the symptoms she was having after surgery to the SPARC device:

I associated my malaise directly with the implants. Almost immediately after the first SPARC Sling implant I began experiencing adverse effects. After the recovery period I started having pain; 36 days after the implantation I was diagnosed with cervicitis and endocervicitis. I also began experiencing long menstrual cycles and bleeding clots. I had lower abdominal tenderness, pelvic pain and lower back pain. My condition and symptoms continued to worsen. I have been dealing with pain and discomfort every day of my life after the surgery and my sex life has been affected in a very dramatic way.

PFS [ECF No. 29-3] 7. Ms. Freire stated further that she knew the pain she was experiencing was “directly related to the mesh because [she] felt the pain, discomfort and worsening symptoms after [she] had the implant.” Id.

         Ms. Freire underwent her first revision surgery in 2007 after her physician told her that there was a problem with her mesh. Id. at 6. Her physician recommended removal because of graft erosion and performed a partial removal on August 20, 2007. During the 2007 surgery, Ms. Freire was implanted with TSL's Pelvicol mesh. According to Ms. Freire, the 2007 implants “started to affect [her] body negatively.” Id. at 8. In 2008, Ms. Freire underwent a procedure to attempt to address the issues with her new implants. Ms. Freire states that in 2012, her physician told her that the symptoms and problems she was experiencing were caused by the mesh and that the mesh needed to be removed. Pl.'s Dep. 88:4-9 [ECF No. 45-5].

         The plaintiffs, however, did not file this lawsuit until 2013, which is when Ms. Freire saw an advertisement for transvaginal mesh litigation on television. The Short-Form Complaint [ECF No. 1], filed on April 25, 2013, named AMS as the only defendant and identified SPARC as the only product at issue. The Complaint asserted all seventeen possible claims. On April 3, 2017, the plaintiffs filed an Amended Short Form Complaint [ECF No. 6] adding C.R. Bard, Inc. and TSL as defendants and again asserting all seventeen possible claims.[2] AMS and TSL have moved for summary judgment on the basis that each of the plaintiffs' claims are time-barred.

         III. Choice of Law

         In multidistrict litigation cases, the choice-of-law determination for pre-trial motions hinges upon whether federal or state law governs. “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) (internal citations omitted); see Toll Bros., Inc. v. Dryvit Sys., Inc., 432 F.3d 564, 568 n.4 (4th Cir. 2005) (applying Connecticut state law in transferred multidistrict litigation case based on diversity jurisdiction).

         This case is based on diversity jurisdiction. Federal law thus controls procedural issues and state law controls substantive issues. Dixon v. Edwards, 290 F.3d 690, 710 (4th Cir. 2002). The standard for summary judgment is procedural; therefore, the federal standard applies. Gen. Accident Fire & Life Assurance Co. v. Akzona, Inc., 622 F.2d 90, 93 n.5 (4th Cir. 1980). In determining which state substantive law governs this dispute, I must first identify which choice-of-law rules to follow.

         In this MDL, this court applies choice-of-law rules of the originating jurisdiction for issues of substantive law. See Sanchez v. Boston Scientific Corp., No. 2:12-CV-05762, 2014 WL 202787, at *3 (S.D. W.Va. Jan. 17, 2014) (“For cases that originate elsewhere and are directly filed into the MDL, I will follow the . . . 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.”). In this case, Ms. Freire was implanted with the products at issue in Illinois and was an Illinois resident at the time of the implants. Therefore, the court applies the choice-of-law rules of Illinois to the plaintiffs' claims. The ...

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