Olson et al v. Johnson & Johnson et al

Filing 150

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) The 115 MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment is GRANTED with regard to the following claims: manufacturing, defect, breach of implied warranty, and breach of contract, and is DENIED in all other respects, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 1/25/2017. (cc: counsel of record; any unrepresented party) (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
MARY JANE OLSON, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-00470

JOHNSON & JOHNSON, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Summary Judgment)
Pending before the court is Defendants’ Motion for Summary Judgment [ECF
No. 115]. As set forth below, the defendants’ Motion is GRANTED in part and
DENIED in part.
I.

Background
This action involves an Arizona plaintiff who was implanted with a Prolift

Total Pelvic Floor Repair System (“Prolift”) and a TVT-Obturator System (“TVT-O”),
both are 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.,
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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 Arizona law applies to the plaintiffs’
claims. The plaintiffs originally filed this action in Arizona. Arizona follows the “most
significant relationship” test, as outlined in the Restatement (Second) of Conflict of
Laws, in determining choice of law questions. Bates v. Superior Court, 749 P.2d 1367,
1369–70 (Ariz. 1988). “Courts look to four factors in making this determination: (1)
the place where the injury occurred, (2) the place where the conduct causing the
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injury occurred, (3) the domicile of the parties, and (4) the place where the parties'
relationship is centered.” Sutter Home Winery, Inc. v. Vintage Selections, Ltd., 971
F.2d 401, 407 (9th Cir. 1992) (citing Bates, 749 P.2d at 1370). Here, the implantation
surgery that allegedly resulted in Ms. Olson’s injuries took place in Arizona. Ms.
Olson is an Arizona resident, and she received medical care for her alleged injuries
in Arizona. Accordingly, Arizona law governs the plaintiffs’ case.
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: manufacturing defect, breach of
implied warranty, and breach of contract. Accordingly, Ethicon’s Motion regarding
those claims is GRANTED.
B.

All Remaining Claims

The court FINDS that genuine disputes of material fact exist regarding the
plaintiffs’ remaining claims. 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. 115] is GRANTED in part and DENIED in part.
Ethicon’s Motion is GRANTED with regard to the following claims: manufacturing
4

defect, breach of implied warranty, and breach of contract. 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 25, 2017