Johnson v. Mentor Corporation

Filing 51

ORDER granting in part and denying in part 43 Motion for Partial Summary Judgment. Ordered by Judge Clay D. Land on 01/18/2013. (CGC)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE * TRANSOBTURATOR SLING PRODUCTS * LIABILITY LITIGATION MDL Docket No. 2004 4:08-MD-2004 (CDL) Case No. 4:11-cv-5071 (N. Johnson) * O R D E R Plantiff Nikaya Johnson (“Johnson”) brought this action against Defendant Mentor Worldwide LLC (“Mentor”), contending that she was injured by Mentor’s ObTape Transobturator Tape. suburethral sling product, Johnson filed her diversity action in the United States District Court for the District of Rhode Island, and the Judicial Panel on Multidistrict Litigation transferred her case to this Court for pretrial proceedings. The parties agree that choice-of-law rules. Litig., 692 F.3d 4, the Court apply the transferor courts.”). Island’s choice of apply Rhode Island’s In re Volkswagen & Audi Warranty Extension 18 (1st Cir. consolidated and transferred under typically must choice of 2012) (“Where a suit is [28 U.S.C.] § 1407, courts law rules of each of the The parties also agree that under Rhode law rules, the Court must apply the substantive law of the Commonwealth of Virginia because Johnson lives in Virginia, all relevant medical treatment occurred in Virginia, and Rhode Island does not have significant contacts to this action. 24 A.3d 514, See Harodite Indus., Inc. v. Warren Elec. Corp., 534 (R.I. 2011) (noting that factors to be considered in choice of law analysis include the place where the injury occurred, the place where the conduct causing the injury occurred, and the residence of the parties). Johnson asserts the following claims: (1) strict liability; (2) negligence; (3) breach of express warranty; (4) failure to warn; and (5) punitive damages. Johnson does not dispute, Mentor correctly contends, and that Virginia does not recognize strict liability as a ground for recovery in product liability cases. E.g., Harris v. T.I., Inc., 413 S.E.2d 605, 609-10 (Va. 1992); Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 374 S.E.2d 55, 57 n.4 (Va. 1988). Johnson does not oppose Mentor’s summary judgment motion on her strict liability claim. Therefore, Mentor is entitled to summary judgment on Count I of Johnson’s Complaint—the strict liability claim. In its partial summary judgment motion, Mentor notes that Johnson’s failure to warn claim incorporates strict liability language, and Mentor seeks summary judgment on the failure to warn claim to the extent Johnson is pursuing it under a strict liability theory. In her response to Mentor’s motion, Johnson clarified that she is pursuing her failure to warn claim under a negligence theory, not a strict liability theory, and Mentor 2 accepted this clarification. Therefore, Mentor’s summary judgment motion as to Johnson’s failure to warn claim is denied. CONCLUSION As discussed above, Mentor’s Motion for Partial Summary Judgment against Johnson (ECF No. 43 in 4:11-cv-5071) is granted as to Count I of Johnson’s Complaint (the strict liability claim) and denied as to Count IV of Johnson’s Complaint (the failure to warn claim). IT IS SO ORDERED, this 18th day of January, 2013. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 3

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