Shively et al v. Johnson & Johnson et al

Filing 286

MEMORANDUM OPINION AND ORDER (Plaintiffs' Motion for Partial Summary Judgment) The 138 MOTION by John Shively, Teri Key Shively for Partial Summary Judgment on Defendant Ethicon, Inc.'s Separate Defenses is GRANTED as it relates to defens es 3, 4, 5, 6, 7, 8, 9, 11, 13, 24, 32, 33, 34, 35, 38, 42, 45, 49, 50, 51, 52, 55, 57, 60, 62, 74, 75, 78, 79, and any defenses challenging the plaintiffs' claims based on federal preemption grounds. The court further ORDERS that the plaintiffs' Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 3/31/2017. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

TERI KEY SHIVELY, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-00379

ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER

(Plaintiffs’ Motion for Partial Summary Judgment)
Pending before the court is the plaintiffs’ Motion for Partial Summary
Judgment [ECF No. 138] wherein the plaintiffs move for partial summary judgment
on various affirmative defenses raised by defendants Ethicon, Inc. and Johnson &
Johnson (collectively, “Ethicon”). As set forth below, the plaintiffs’ Motion is
GRANTED in part and DENIED in part.
I.

Background
This action involves Louisiana co-plaintiffs, one of whom was implanted with

TVT-Obturator (“TVT-O”) and Prolift, mesh products manufactured by Ethicon.
Compl. [ECF No. 74] ¶¶ 1–9. The 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 60,000 cases currently pending,
nearly 28,000 of which are in the Ethicon MDL, MDL 2327.
In an effort to efficiently and effectively manage this massive MDL, the court
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 summary
judgment motions, among other things), it can then be promptly transferred or
remanded to the appropriate district for trial. To this end, the court ordered the
plaintiffs and defendants to submit a joint list of 200 of the oldest cases in the Ethicon
MDL that name only Ethicon, Inc., Ethicon, LLC, and/or Johnson & Johnson. These
cases became part of a “wave” of cases to be prepared for trial and, if necessary,
remanded. See Pretrial Order No. 193, In re Ethicon, Inc. Pelvic Repair Sys. Prods.

Liab.

Litig.,

No.

2:12-md-002327,

Aug.

19,

2015,

available

at

http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. The plaintiffs’ case was
selected as an “Ethicon Wave 1 case.”
II.

Legal Standards
A. Summary Judgment
A court may use partial summary judgment to dispose of affirmative defenses.

Int’l Ship Repair & Marine Servs., Inc. v. St. Paul Fire & Marine Ins. Co., 944 F. Supp.
886, 891 (M.D. Fla. 1996). 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
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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).
Although the court will view all underlying facts and inferences in the light
most favorable to the nonmoving party, 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).
B. Choice of Law
The parties agree, as does this court, that Louisiana law applies to the
plaintiffs’ claims. To determine the applicable state law for a dispositive motion, I
generally refer to the choice-of-law rules of the jurisdiction where the plaintiffs first
filed their claim. See In re Air Disaster at Ramstein Air Base, Ger., 81 F.3d 570, 576
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(5th Cir. 1996). The plaintiffs originally filed this action in Louisiana. Thus, the
choice-of-law principles of Louisiana guide this court’s choice-of-law analysis.
Under Louisiana law, a tort claim “is governed by the law of the state whose
policies would be most seriously impaired if its laws were not applied” to the claim.
La. Civ. Code Ann. art. 3542 (listing factors such as place of injury, residence of
parties, and the state in which the relationship between parties was centered to
determine the appropriate state law). The plaintiffs reside in Louisiana, Ms. Shively
was implanted with the product at issue in Louisiana, and her alleged injuries and
follow-up care occurred in Louisiana. Accordingly, I will apply Louisiana's
substantive law to this case.
III.

Analysis
The plaintiffs argue they are entitled to summary judgment on “[m]any, if not

most” of Ethicon’s affirmative defenses contained in the Master Answer and Jury
Demand of Defendant Ethicon, Inc. to First Amended Master Complaint (“Ethicon’s
Master Answer”).1 Mem. Supp. Mot. Partial Summ. J. 1 [ECF No. 139]. The plaintiffs
argue that their Motion should be granted because “these separate defenses are
generic, not supported by the facts or evidence, and have absolutely no basis for being
raised in Ms. Shively’s case.” Id. Ethicon agrees that this court should dismiss a

While not providing one complete list, the plaintiffs appear to be challenging Ethicon’s affirmative
defenses listed in the following paragraphs of Ethicon’s Master Answer: 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13,
14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 30, 31, 32, 33, 35, 39, 42, 45, 49, 50, 51, 52, 55, 57, 58, 59, 60, 62,
67, 68, 74, 75, 76, 77, 78, and 79. See Mem. Supp. Mot. Partial Summ. J. 1–13 [ECF No. 139].
1

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number of the affirmative defenses listed in its Master Answer because they do not
apply to the particulars of Ms. Shively’s case, and Ethicon withdraws the defenses
contained in the following paragraphs of Ethicon’s Master Answer: 3, 4, 5, 6, 7, 8, 9,
11, 13, 24, 32, 33, 34, 35, 38, 42, 45, 49, 50, 51, 52, 55, 57, 60, 62, 74, 75, 78, and 79.
Resp. Mem. Opp. Mot. Summ. J. 1 [ECF No. 157]. Accordingly, the plaintiffs’ Motion
with regard to these defenses is GRANTED.
Ethicon challenges the dismissal of some remaining affirmative defenses based
on federal preemption by arguing that the TVT-O and Prolift devices are regulated
by the Food and Drug Administration (“FDA”). Id. at 8. The court has addressed this
issue on several occasions and finds no reason to deviate from its prior rulings based
on the facts and circumstances of the present case. See, e.g., Mullins v. Ethicon, Inc.,
147 F. Supp. 3d 478 (S.D. W. Va. 2015); Cisson v. C. R. Bard, Inc., 86 F. Supp. 3d 510,
517 (S.D. W. Va. 2015), aff’d. In re C. R. Bard, Inc., MDL. No. 2187, Pelvic Repair Sys.

Prod. Liab. Litig., 810 F.3d 913 (4th Cir. 2016). Accordingly, the plaintiffs’ Motion is
GRANTED to the extent that it challenges Ethicon’s affirmative defenses based on
federal preemption and compliance with FDA requirements.
The court FINDS that genuine disputes of material fact exist regarding the
plaintiffs’ remaining claims challenged by Ethicon. Accordingly, the plaintiffs’ Motion
as to the remaining defenses is DENIED.
IV.

Conclusion
For the reasons discussed above, the court ORDERS that the plaintiffs’ Motion

for Partial Summary Judgment [ECF No. 138] is GRANTED as it relates to defenses
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3, 4, 5, 6, 7, 8, 9, 11, 13, 24, 32, 33, 34, 35, 38, 42, 45, 49, 50, 51, 52, 55, 57, 60, 62, 74,
75, 78, 79, and any defenses challenging the plaintiffs’ claims based on federal
preemption grounds. The court further ORDERS that the plaintiffs’ Motion is
DENIED in all other respects.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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March 31, 2017