United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
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
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.
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 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
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
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.”
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].
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. AMS and TSL have moved for summary
judgment on the basis that each of the plaintiffs' claims
Choice of Law
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).
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.
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 ...