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)

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