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Gray v. C. R. Bard Inc.

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

December 3, 2019

AMANDA GRAY, Plaintiff,
v.
C. R. BARD INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE.

         Pending before the court is a Motion for Summary Judgment [ECF No. 47] filed by defendants C. R. Bard, Inc. (“Bard”) and Tissue Science Laboratories Limited (“TSL”). The plaintiff has not responded, and the Motion is ripe. The defendants' Motion is GRANTED in its entirety and the plaintiff's claims are DISMISSED with prejudice.

         I. Background

         This action involves Oklahoma plaintiff, Amanda Gray. The plaintiff was implanted with PelviSoft Acellular Collagen BioMesh (“PelviSoft”) in 2006. Am. Short Form Compl. [ECF No. 3] ¶¶ 1-11. This case against Bard and TSL resides in the Bard MDL, MDL 2187, one of the 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”). The plaintiff alleges the following claims against the defendants: Negligence (Count I); Strict Liability Design Defect (Count II); Strict Liability Manufacturing Defect (Count III); Strict Liability Failure to Warn (Count IV); Breach of Express Warranty (Count V); Breach of Implied Warranty (Count VI); and, Punitive Damages (Count VIII). Am. Short Form Compl. [ECF No. 3] ¶¶ 14.

         The plaintiff has been proceeding in this matter pro se since 2018. Due to the complicated nature of multidistrict litigation and the plaintiff's previous efforts to comply with this court's orders, the court has been lenient in providing Ms. Gray multiple opportunities to meet discovery deadlines. Her case has been placed in three different pretrial “waves.” Most recently in June of 2019, this court reassigned the plaintiff's case to “Bard Wave 10, ” allowing her a longer timeframe to meet pretrial deadlines. [ECF No. 29].

         II. Legal Standard

         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 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 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).

         The plaintiff failed to respond to the defendants' Motion, and the court, accordingly, considers the Motion for Summary Judgment as an unopposed Motion. The court does not, however, automatically grant an unopposed Motion for Summary Judgment. See Fed. R. Civ. P. 56(e). “[I]n considering a motion for summary judgment, the district court “must review the motion, even if unopposed, and determine from what it has before it whether the moving party is entitled to summary judgment as a matter of law.” Blackwell v. Ethicon, Inc., No. 2:12-CV-03155, 2017 WL 2884531, at *2 (S.D. W.Va. July 6, 2017).

         B. Choice of Law

         Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in MDL cases such as this. The choice of law for these pretrial motions depends on whether they involve 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 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). In cases based on diversity jurisdiction, the choice-of-law rules to be used are those of the states where the actions were originally filed. See In re Air Disaster at Ramstein Air Base, Ger., 81 F.3d 570, 576 (5th Cir.1996) (“Where a transferee court presides over several diversity actions consolidated under the multidistrict rules, the choice of law rules of each jurisdiction in which the transferred actions were originally filed must be applied.”); In re Air Crash Disaster Near Chi., Ill., 644 F.2d 594, 610 (7th Cir.1981); Carlson v. Bos. Sci. Corp., No. 2:13-CV-05475, 2015 WL 1956354, at *2 (S.D. W.Va. Apr. 29, 2015). In re Digitek Prods. Liab. Litig., MDL No. 2:08-md-01968, 2010 WL 2102330, at *7 (S.D.W.Va. May 25, 2010).

         If a plaintiff files her claim directly into the MDL in the Southern District of West Virginia, as is the case here, I consult the choice-of-law rules of the state in which the implantation surgery took place. See Sanchez v. Boston Scientific Corp., 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.”). In this case, Ms. Gray received the implantation surgery in Oklahoma. Thus, the choice-of-law principles of Oklahoma guide this court's choice-of-law analysis.

         Under Oklahoma law, “the rights and liabilities of parties with respect to a particular issue in tort should be determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties.” Brickner v. Gooden, 525 P.2d 632, 637 (Okla. 1974); see also Hightower v. Kansas City Southern Ry. Co., 70 P.3d 835 (Okla. 2003). Under these choice-of-law principles, I apply Oklahoma law. The plaintiff is a citizen of Oklahoma. Am. Short Form Compl. [ECF No. 3] ¶¶ 4-13. She underwent implantation of the PelviSoft product in Oklahoma. Id. Because the plaintiff resides in Oklahoma, any ...


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