Free v. Johnson & Johnson Inc. et al

Filing 128

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) Ethicon's 55 Motion and 83 Alternative Motion are GRANTED in part and DENIED in part. Ethicon's Motions are GRANTED with regard to the following claims: (I) neg ligence, (II) strict liability - manufacturing defect, (III) strict liability - failure to warn, (IV) strict liability - defective product, (V) strict liability - design defect, (VI) common law fraud, (VII) fraudulent concealment, (VIII) constructive fraud, (IX) negligent misrepresentation, (X) negligent infliction of emotional distress, (XI) breach of express warranty, (XII) breach of implied warranty, and (XIV) gross negligence; and Ethicon's Motions are DENIED in all other respects, including as to IPLA and timeliness under the statute of limitations. Signed by Judge Joseph R. Goodwin on 3/6/2017. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
PAMELA FREE,
Plaintiff,
v.

CIVIL ACTION NO. 2:12-cv-00423

ETHICON, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Summary Judgment)
Pending before the court are Motions for Summary Judgment [ECF No. 55 and
83] filed by defendants Ethicon, Inc. and Johnson & Johnson (collectively, “Ethicon”).
As set forth below, Ethicon’s Motion [ECF No. 55] and its Alternative Motion for
Partial Summary Judgment (“Alternative Motion”) [ECF No. 83] are GRANTED in
part and DENIED in part.
I.

Background
This action involves an Indiana plaintiff, Pamela Free. On June 21, 2005,

Ms. Free was implanted with Tension-Free Vaginal Tape (“TVT”), a mesh product
manufactured by Ethicon, at Indiana Surgery Center in Kokomo, Indiana, by
Dr. Richard Senn. Second Am. Short Form Compl. [ECF No. 46] ¶¶ 8–12. 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
plaintiff 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 plaintiff ’s case was
selected as an “Ethicon Wave 1 case.”
II.

Legal Standards
A. Summary Judgment
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 truth
of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the
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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
If a plaintiff files her claim directly into the MDL in the Southern District of
West Virginia, as Ms. Free did in this case, the court consults the choice-of-law rules
of the state where the plaintiff was implanted with the product. See Sanchez v. Boston

Scientific Corp., 2:12-cv-05762, 2014 WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014)
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(“For cases that originate elsewhere and are directly filed into the MDL, the court
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.”). Ms. Free underwent the TVT implantation surgery in
Indiana. Thus, the choice-of-law principles of Indiana guide the court’s choice-of-law
analysis.
The parties agree, as does the court, that these principles compel application
of Indiana substantive law to the plaintiff’s claims. Indiana applies a modified lex loci

delecti test: the substantive law of the place where the tort occurred controls the case
unless the location of the tort is an insignificant contact. Simon v. United States, 805
N.E.2d 798, 805 (Ind. 2004). Ms. Free is a resident of Indiana, and she underwent the
TVT implantation surgery in Indiana. Indiana is thus not an insignificant contact:
Indiana has a strong interest in resolving tort actions brought by one of its citizens
for injuries arising from conduct alleged to have occurred within its territorial
jurisdiction. Thus, I will apply Indiana substantive law to this case.
III.

Analysis
Ethicon argues in its Motions [ECF. No. 55 and 83] it is entitled to summary

judgment because the plaintiff’s claims are subsumed by the Indiana Products
Liability Act (“IPLA”) and are without evidentiary or legal support.
A. Conceded Claims
The plaintiff concedes the following claims: (II) strict liability – manufacturing
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defect, (IX) negligent misrepresentation, (XI) breach of express warranty, and
(XII) breach of implied warranty. Accordingly, Ethicon’s Motion regarding those
claims is GRANTED.
B. Effect of the Indiana Products Liability Act
As the law requires, and as both parties agree, IPLA requires all of the
plaintiff’s causes of action to be consolidated into one claim for Ms. Free’s alleged
personal injuries, “regardless of the substantive legal theory or theories upon which
the action is brought.” Ind. Code § 34-20-1-1. The Supreme Court of Indiana has held
that “[IPLA] govern[s] all product liability actions, whether the theory of liability is
negligence or strict liability in tort.”Stegemoller v. ACandS, Inc., 767 N.E.2d 974, 975
(Ind. 2002) (quoting Dague v. Piper Aircraft Corp., 418 N.E.2d 207, 212 (Ind. 1981)).
Under IPLA, a plaintiff must show a product is defective and unreasonably dangerous
through one of three theories: design defect, manufacturing defect, or failure to warn.

First Nat’l. Bank & Trust Corp. v. Am. Eurocopter Corp., 378 F.3d 682 (7th Cir. 2004)
(applying Indiana law).
Accordingly, the following claims are merged into IPLA: Count I, III–VIII, X
and XIV. Ethicon’s Motions are GRANTED in that the following counts are subsumed
into IPLA: (I) negligence, (III) strict liability – failure to warn, (IV) strict liability –
defective product, (V) strict liability – design defect, (VI) common law fraud,
(VII) fraudulent concealment, (VIII) constructive fraud, (X) negligent infliction of
emotional distress, and (XIV) gross negligence.
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C. All Remaining Claims
The court FINDS that genuine disputes of material fact exist regarding the
plaintiff’s remaining claims challenged by Ethicon, including timeliness under the
Indiana statutes of limitations. Accordingly, Ethicon’s Motions as to all remaining
claims are DENIED.
IV.

Conclusion
For the reasons discussed above, it is ORDERED that Ethicon’s Motion

[ECF No. 55] and Alternative Motion [ECF No. 83] are GRANTED in part and
DENIED in part. Ethicon’s Motions are GRANTED with regard to the following
claims: (I) negligence, (II) strict liability – manufacturing defect, (III) strict liability
– failure to warn, (IV) strict liability – defective product, (V) strict liability – design
defect, (VI) common law fraud, (VII) fraudulent concealment, (VIII) constructive
fraud, (IX) negligent misrepresentation, (X) negligent infliction of emotional distress,
(XI) breach of express warranty, (XII) breach of implied warranty, and (XIV) gross
negligence. Ethicon’s Motions are DENIED in all other respects, including as to IPLA
and timeliness under the statute of limitations.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: March 6, 2017

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