Jones et al v. American Medical Systems, Inc.

Filing 131

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) The 92 MOTION for Summary Judgment is GRANTED in part and DENIED in part; the Motion is GRANTED with regard to the plaintiff's negligence - manufacturing defect, strict liability - manufacturing defect, strict liability - failure to warn, strict liability - defective product, and strict liability - design defect claims, and to the extent that Ethicon's Motion challenges any other claims, the Motion is DENIED, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 12/21/2016. (cc: counsel of record; any unrepresented party) (ts)

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

HOLLY JONES, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-0443

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

(Defendants’ Motion for Summary Judgment)
Pending before the court is the defendants’ Motion for Summary Judgment
[ECF No. 92]. As set forth below, the defendants’ Motion is GRANTED in part and
DENIED in part.
I.

Background
This case resides in one of seven MDLs assigned to the court 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
28,000 of which are in the Ethicon, Inc. and Johnson & Johnson, Inc. (“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. I completed this selection
process four times and selected the plaintiff ’s case as a 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
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
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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

Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in
MDL cases. The choice of law for these pretrial motions depends on whether they
concern federal or state law:
When analyzing questions of federal law, the transferee court should
apply the law of the circuit in which it is located. When considering
questions of state law, however, the transferee court must apply the
state law that would have applied to the individual cases had they not
been transferred for consolidation.

In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050,
1055 (8th Cir. 1996) (internal citations omitted). To determine the applicable state
law for a dispositive motion, the court generally refers to the choice-of-law rules of
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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) (“Where a transferee court
presides over several diversity actions consolidated under the multidistrict rules, the
choice of law rules of each jurisdiction in which the transferred actions were originally
filed must be applied.”); 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 California. Therefore, I use California’s choice-of-law rules to
determine which state’s law to apply to this case.
California courts apply a three-step governmental interest approach to resolve
choice-of-law disputes. Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914, 922
(Cal. 2006); Hurtado v. Super. Ct., 522 P.2d 666, 669 (Cal. 1974). Under the first step,
the court should determine whether the laws of each potential jurisdiction actually
differ. Kearney, 137 P.3d at 922. Second, where the laws of each jurisdiction differ,
the court must determine whether a “true” conflict exists by determining whether
each state has an interest in applying its law in this case. Id. Finally, if a true conflict
exists, the court will determine “which state's interest would be more impaired if its
policy were subordinated to the policy of the other state” and apply that state's law.

Id. (quoting Bernhard v. Harrah's Club, 546 P.2d 719, 723 (Cal. 1976)).
The first step—whether the laws of California and Michigan actually differ—
is satisfied. California and Michigan apply different tests to establish liability for
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design defect claims. One particular difference lies in the requirement that a plaintiff
shows the existence of a practical alternative design. Michigan places a burden on
the plaintiff to produce evidence showing “that there was a reasonable alternative
design available.” Peck v. Bridgeport Machs., Inc., 237 F.3d 614, 617 (6th Cir. 2001)
(citing Owens v. Allis-Chalmers Corp., 326 N.W.2d 372 (Mich. 1982)). California,
however, states that “it is not the plaintiff’s burden in a design defect case to prove
the existence of a feasible alternative design.” Altman v. HO Sports Co., Inc., 821 F.
Supp. 2d 1178, 1196 n.17 (E.D. Cal. 2011) (quoting Ford v. Polaris Indus., Inc., 43
Cal. Rptr. 3d 215, 228 (Cal. Ct. App. 2006)). Because these requirements stand in
opposition to one another, I find that the laws of California and Michigan differ. I now
move to the second step.
Under the second step, I must determine whether both states have an interest
in having their respective laws applied in this case. In other words, I must decide
whether “only one of the states has an interest in having its law applied.” Wash. Mut.

Bank, FA v. Super. Ct., 15 P.3d 1071, 1081 (Cal. 2001). If only one state has an
interest in having its law applied here, I will apply the law of that state.
Michigan is the only state with an interest in this case. The plaintiff is a
Michigan resident and was implanted with Ethicon’s product in Michigan. Michigan
has an interest in protecting its residents from injuries that occurred within its
territorial jurisdiction. I find that Michigan’s interests would be significantly
impaired if its law were not applied. The parties agree that these principles compel
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application of Michigan law.1 Thus, the court applies Michigan’s substantive law to
this case.
III.

Analysis
Ethicon argues it is entitled to summary judgment because the plaintiffs’ legal

theories are without evidentiary or legal support.
A.

Negligence – Manufacturing Defect

In their Response, the plaintiffs expressly withdraw their manufacturing
defect claim. Accordingly, Ethicon’s Motion with regard to this claim is GRANTED.
B.

Strict Liability Claims

“Michigan does not accept strict liability as the basis of a claim on which relief
can be granted.” Magnant v. Medtronic, Inc., 818 F. Supp. 204, 206 (W.D. Mich. 1993)
(citing Prentis v. Yale Mfg. Co., 365 N.W.2d 176, 181–86 (Mich. 1984)); see Radeljak

v. Daimlerchrysler Corp., 719 N.W.2d 40, 47 n.10 (Mich. 2006) (listing Michigan as
one of six states that does not recognize strict liability) (citing Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 252 n.18 (1981)). In the products liability context, only
negligence and implied warranty are recognized, “not strict liability.” Toth v. Yoder

Co., 749 F.2d 1190, 1193 (6th Cir. 1984) (citing Hartford Fire Ins. v. Walter Kidde &
Co., 328 N.W.2d 29, 33 (Mich. Ct. App. 1982)).

The parties agree that Michigan substantive law applies. The defendants applied California’s
governmental interest test to determine that Michigan substantive law applies. Def.’s Mem. in Supp.
of Mot. for Summ. J. [ECF No. 93]. Additionally, the plaintiffs do not dispute that Michigan
substantive law applies. See Response 7 [ECF No. 100].
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Accordingly, the plaintiffs’ strict liability claims must fail as a matter of law.
Ethicon’s Motion regarding the plaintiffs’ strict liability – manufacturing defect, strict
liability – failure to warn, strict liability – defective product, and strict liability –
design defect claims is GRANTED.
C.

Negligent Infliction of Emotional Distress

Under Michigan law,
[a] plaintiff may recover for negligent infliction of emotional distress
where (1) the injury threatened or inflicted on the third person is a
serious one, of a nature to cause severe mental disturbance to the
plaintiff, (2) the shock results in actual physical harm, (3) the plaintiff
is a member of the third person's immediate family, and (4) the plaintiff
is present at the time of the accident or suffers shock ‘fairly
contemporaneous’ with the accident.

Taylor v. Kurapati, 600 N.W.2d 670, 693 (Mich. Ct. App. 1999). Thus, “Michigan
recognizes the tort of negligent infliction of emotional distress only when a plaintiff
witnesses negligent injury to a third party and suffers mental disturbance as a
result.” Teadt v. Lutheran Church Mo. Synod, 603 N.W.2d 816, 823 n.6 (Mich. Ct. App.
1999) (citing Duran v. Det. News, Inc., 504 N.W.2d 715 (Mich. Ct. App. 1993)); see

Gillespie v. City of Battle Creek, 100 F. Supp. 3d 623, 634 (W.D. Mich. 2015).
The plaintiffs’ complaint does not allege that they witnessed injury to an
immediate family member. To the contrary, the plaintiffs only allege direct injury to
Ms. Jones. Accordingly, Ethicon’s Motion for Summary Judgment regarding the
plaintiffs’ negligent infliction of emotional distress claim is GRANTED.

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D.

Remaining Claims

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 Ethicon’s Motion challenges any other claims, the Motion
is DENIED.
IV.

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

Summary Judgment [ECF No. 92] is GRANTED in part and DENIED in part.
Ethicon’s Motion is GRANTED with regard to the plaintiff ’s negligence –
manufacturing defect, strict liability – manufacturing defect, strict liability – failure
to warn, strict liability – defective product, and strict liability – design defect claims.
To the extent that Ethicon’s Motion challenges any other claims, the Motion is
DENIED.
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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December 21, 2016