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.
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
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.
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].
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).
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).
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).
Choice of Law
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).
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
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