Zablocki v. C. R. Bard, Inc.
MEMORANDUM OPINION AND ORDER The 51 Motion for Partial Summary Judgment is GRANTED IN PART with respect to the plaintiff's claims for manufacturing defect, breach of implied warranty, breach of express warranty, and negligent inspection, packa ging, marketing, and selling. The Motion is DENIED IN PART with respect to the plaintiff's claims for strict liability failure to warn and negligent failure to warn. The 49 Motion for Partial Summary Judgment is DENIED. Signed by Judge Joseph R. Goodwin on 3/21/2017. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 2:11-cv-808
C. R. BARD, INC.,
MEMORANDUM OPINION AND ORDER
Pending before the court are all remaining pretrial motions. All are ripe for
This case resides in one of 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”). In the seven
MDLs, there are more than 58,000 cases currently pending, approximately 7,000 of
which are in the Bard MDL, MDL 2187. In an effort to efficiently and effectively
manage this MDL, I decided to conduct pretrial discovery and motions practice on an
individualized basis so that once a case is trial-ready (that is, after the court has ruled
on all Daubert motions and summary judgment motions, among other things), it can
then be promptly transferred or remanded to the appropriate district for trial. To this
end, I ordered the plaintiffs and defendant to each select 50 cases, which would then
become part of a “wave” of cases to be prepared for trial and, if necessary, remanded.
See Pretrial Order (“PTO”) # 102, No. 2:10-md-2187 [ECF No. 729]. This selection
process was completed twice, creating two waves of 100 cases, Wave 1 and Wave 2.
Thereafter, I entered orders on subsequent waves. Ms. Zablocki’s case was selected
as a Wave 1 case by the plaintiffs. PTO # 118, No. 2:10-md-2187 [ECF No. 841].
a. Summary Judgment
To obtain summary judgment, “the movant must show that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In turn, to avoid summary judgment, the
nonmovant must offer some “concrete evidence from which a reasonable juror could
return a verdict” in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
b. Choice of Law
Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in
MDL cases. To determine the applicable state law for a dispositive motion, the court
generally refers to the choice-of-law rules of the jurisdiction where the plaintiff first
filed her claim. See In re Air Disaster at Ramstein Air Base, Ger., 81 F.3d 570, 576
(5th Cir. 1996); In re Air Crash Disaster Near Chi., Ill., 644 F.2d 594, 610 (7th Cir.
1981); In re Digitek Prods. Liab. Litig., MDL No. 2:08-md-01968, 2010 WL 2102330,
at *7 (S.D. W. Va. May 25, 2010).
This case was originally filed in the Northern District of Illinois. Therefore, I
use Illinois’s choice-of-law rules to determine which state’s law to apply to this case.
Illinois is the plaintiff’s state of residence, where the implant surgery took place, and
where their claimed injuries occurred. For the reasons discussed in Jester v. C. R.
Bard, I agree with the parties that Illinois law applies to the plaintiff’s substantive
claims. Jester v. C. R. Bard, No. 2:13-cv-18843, 2016 WL 7045735, at *2 (S.D. W. Va.
Dec. 2, 2016) (“Under [the-most significant-relationship] test, courts should consider
the following factors: (1) the place where the injury occurred, (2) the place where the
conduct causing the injury occurred, (3) the domicile, residence, nationality, place of
incorporation and business of the parties, and (4) the place where the relationship, if
any, between the parties is centered.”).
a. Bard’s Motion for Summary Judgment [ECF No. 51]
Bard’s Motion for Summary Judgment [ECF No. 51] is GRANTED in part as
to the following conceded claims: manufacturing defect, breach of express or implied
warranty, or any violation of the Consumer Fraud and Deceptive Practices Act.
Under Illinois law, “[a] product liability action asserting a claim based on
negligence . . . falls within the framework of common law negligence.” Calles v.
Scripto-Tokai Corp., 864 N.E.2d 249, 263 (Ill. 2007). “[A] plaintiff must establish the
existence of a duty of care owed by the defendant, a breach of that duty, an injury
proximately caused by that breach, and damage.” Id.
Bard contends that the plaintiff’s claims for negligent inspection, packaging,
marketing, and selling of the product fail for lack of evidence. The plaintiffs argue
that Bard misconstrues the nature of their negligence argument, and that their
allegations regarding the alleged negligent inspection, marketing, labeling,
packaging, and selling of the Align comprise part of their general negligence claim,
rather than distinct theories of recovery. In short, the plaintiff asserts that Bard
failed to adequately study or test its mesh products to determine if the products were
A review of the plaintiff’s Count I in both the state court Complaint [ECF No.
1-1] and the Master Complaint, Master Compl. ¶¶ 62–67, No. 2:10-md-2187 [ECF No.
199], reveals that the plaintiff asserted three distinct negligence theories under
“Count I.” The bulk of the Count I allegations make out claims for negligent failure
to warn and negligent design defect. The other negligence allegations posit that Bard
was “negligent . . . in designing, manufacturing, marketing, labeling, packaging, and
selling” the product. Master Compl. ¶ 64, No. 2:10-md-2187; see also Compl. ¶ 6(a)
(“[Bard] failed to use reasonable care in designing, manufacturing, marketing,
labeling, packaging, and selling the product . . . .”) . Thus, the plaintiff’s concerns that
Bard is misconstruing the plaintiff’s negligence claim are meritless; Bard simply
chose to address the plaintiff’s different theories of negligence separately. However,
apart from reciting allegations that form the plaintiff’s failure to warn and design
defect claims, the plaintiff does not offer sufficient support to create a genuine dispute
that Bard breached a legal duty that caused the plaintiff’s injuries in their
“inspection, marketing, labeling, packaging, or selling” of the product. Accordingly,
Bard’s Motion on these points is GRANTED.
After considering the parties’ proffered arguments and evidence, I FIND that
genuine disputes of material fact exist regarding the plaintiff ’s remaining claims.
Accordingly, to the extent Bard’s Motion challenges any other claims, the Motion is
b. Bard’s Motion for Partial Summary Judgment [ECF No. 49]
The question of whether a plaintiff is entitled to punitive damages often
involves an interlocking web of factual determinations respecting the defendant’s
conduct. The evidentiary record is frequently muddled enough on the point that
genuine issues of material fact remain. That is the case here. Consequently, Bard is
not, at least at this stage of the case, entitled to judgment as a matter of law on the
punitive damages claim. Thus, the Motion for Partial Summary Judgment [ECF No.
49] is DENIED.
For the reasons discussed above, it is ORDERED that Bard’s Motion for Partial
Summary Judgment [ECF No. 51] is GRANTED IN PART with respect to the
plaintiff’s claims for manufacturing defect, breach of implied warranty, breach of
express warranty, and negligent inspection, packaging, marketing, and selling.
Bard’s Motion is DENIED IN PART with respect to the plaintiff’s claims for strict
liability failure to warn and negligent failure to warn. It is further ORDERED that
the Motion for Partial Summary Judgment [ECF No. 49] is DENIED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
March 21, 2017
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