Wheeler v. Johnson & Johnson et al

Filing 131

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Partial Summary Judgment) Ethicon's 90 Motion for Summary Judgment is GRANTED in part and DENIED in part. Ethicon's Motion is GRANTED with regard to the following claims: Count II (manufacturing defect), Count IV (defective product), Count X (negligent infliction of emotional distress), Count XII (breach of implied warranty), Count XIII (violation of consumer protection laws), and Count XV (unjust enrichment); and Ethicon's Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 1/30/2017. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
PAMELA GRAY-WHEELER, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-00455

ETHICON, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Partial Summary Judgment)
Pending before the court is Defendants’ Motion for Partial Summary Judgment
[ECF No. 90]. As set forth below, the defendants’ Motion is GRANTED in part and
DENIED in part.
I.

Background
This action involves a Mississippi plaintiff who was implanted with a Prolift

and a TVT-SECUR (“TVT-S”), mesh products manufactured by Ethicon. 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

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.,
2

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 Mississippi law applies to the
plaintiffs’ claims at issue in this Motion.1 The plaintiffs originally filed this action in
the United States District Court for the Northern District of Mississippi. Compl. [ECF
No. 1]. Mississippi follows the “most significant relationship” test, as outlined in the
Restatement (Second) of Conflict of Laws, in determining choice of law questions.

Ethicon asserts that New Jersey law governs the punitive damage claim. The plaintiffs’ punitive damage claim,
however, is not at issue in Ethicon’s Motion and therefore will not be addressed.
1

3

Church v. Massey, 697 So. 2d 407, 410 (Miss. 1997). Courts look to four factors in
making this determination: “(a) the place where the injury occurred, (b) the place
where the conduct causing the injury occurred, (c) the domicile, residence,
nationality, place of incorporation and place of business of the parties, and (d) the
place where the relationship, if any, between the parties is centered.” Id. (citing

McDaniel v. Ritter, 566 So. 2d 303, 310 (Miss. 1989)). Here, the implantation surgery
took place in Mississippi. Ms. Gray-Wheeler is a Mississippi resident, and she
received medical care for her alleged injuries in Mississippi. Accordingly, Mississippi
law governs the plaintiffs’ claims.
III.

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

theories are without evidentiary or legal support.
A.

Conceded Claims

The plaintiffs concede the following claims: Count II (manufacturing defect),
Count IV (defective product), Count X (negligent infliction of emotional distress),
Count XII (breach of implied warranty), and Count XIII (violation of consumer
protection laws). Accordingly, Ethicon’s Motion regarding those claims is GRANTED.
B.

Unjust Enrichment

The plaintiffs have not identified any evidence to support their unjust
enrichment claim. Accordingly, Ethicon’s Motion on this point is GRANTED.

4

C.

All Remaining Claims

The court FINDS that genuine disputes of material fact exist regarding the
plaintiffs’ remaining claims challenged by Ethicon. Accordingly, Ethicon’s Motion as
to all remaining claims is DENIED.
IV.

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

Summary Judgment [ECF No. 90] is GRANTED in part and DENIED in part.
Ethicon’s Motion is GRANTED with regard to the following claims: Count II
(manufacturing defect), Count IV (defective product), Count X (negligent infliction of
emotional distress), Count XII (breach of implied warranty), Count XIII (violation of
consumer protection laws), and Count XV (unjust enrichment). Ethicon’s 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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January 30, 2017