Beach v. American Medical Systems, Inc.

Filing 184

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Partial Summary Judgment) Ethicon's 104 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 (Strict Liability - Manufacturing Defect), Count III (Strict Liability - Failure to Warn), Count IV (Strict Liability - Defective Product), and Count V (Strict Liability - Design Defect), Count VI (Common Law Fraud), Count VII (Fraudulent Concealmen t), Count VIII (Constructive Fraud), Count IX (Negligent Misrepresentation), Count X (Negligent Infliction of Emotional Distress), and Count XV (Unjust Enrichment); and Ethicon's Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 2/3/2017. (cc: counsel of record; any unrepresented party) (kp)

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

CIVIL ACTION NO. 2:12-cv-00476

ETHICON, INC., et al.,
Defendants.

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

Background
This action involves a Massachusetts plaintiff who was implanted with

Gynemesh PS, a mesh product 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 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
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 Massachusetts law applies to the
plaintiff’s 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 plaintiff first
filed her claim. See In re Air Disaster at Ramstein Air Base, Ger., 81 F.3d 570, 576
(5th Cir. 1996). The plaintiff originally filed this action in the United States District
Court for the Northern District of California. Compl. [ECF No. 1]. Thus, the choice3

of-law principles of California guide this court’s choice-of-law analysis.
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). The court must:
(1) consider whether the laws of each potential jurisdiction actually differ; (2) decide
whether a “true” conflict exists by determining whether each state has an interest in
applying its law in this case; and (3) 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. Kearney, 137 P.3d at 922 (quoting

Bernhard v. Harrah's Club, 546 P.2d 719, 723 (Cal. 1976)).
Here, Massachusetts is the only state with an interest in this case. Ms. Beach
is a Massachusetts resident. She was implanted with Ethicon’s product in
Massachusetts, and she received medical care for her alleged injuries in
Massachusetts. Massachusetts has an interest in protecting its residents from
injuries that occurred within its territorial jurisdiction. I find that Massachusetts’
interests would be significantly impaired if its law were not applied. Moreover, both
parties agree that Massachusetts is the proper choice of law. Accordingly,
Massachusetts law governs the plaintiff’s case.
III.

Analysis
Ethicon argues it is entitled to summary judgment because the plaintiff’s

claims are without evidentiary or legal support.
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A.

Conceded Claims

The plaintiff concedes the following claims: Count II (Strict Liability –
Manufacturing Defect), Count X (Negligent Infliction of Emotional Distress), and
Count XV (Unjust Enrichment). Accordingly, Ethicon’s Motion regarding those claims
is GRANTED.
B.

Strict Liability Claims

Massachusetts does not recognize claims for strict products liability in tort.

Mavilia v. Stoeger Industries, 574 F. Supp. 107, 109 (D. Mass. 1983) (citing Back v.
Wickes Corp., 378 N.E.2d 964, 968 (Mass. 1978)); see Swartz v. Gen. Motors Corp.,
375 Mass. 628, 629, 378 N.E.2d 61, 62 (Mass. 1978) (finding “no ‘strict liability in
tort’” under Massachusetts law). Instead, Massachusetts has adopted implied
warranty liability to remedy behavior that is traditionally remedied through a strict
products liability theory. Id. Accordingly, Ethicon’s Motion as to Count III (Strict
Liability – Failure to Warn), Count IV (Strict Liability – Defective Product), and
Count V (Strict Liability – Design Defect) is GRANTED.
C.

All Remaining Claims

The court FINDS that genuine disputes of material fact exist regarding the
plaintiff’s 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
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Summary Judgment [ECF No. 104] is GRANTED in part and DENIED in part.
Ethicon’s Motion is GRANTED with regard to the following claims: Count II (Strict
Liability – Manufacturing Defect), Count III (Strict Liability – Failure to Warn),
Count IV (Strict Liability – Defective Product), and Count V (Strict Liability – Design
Defect), Count VI (Common Law Fraud), Count VII (Fraudulent Concealment), Count
VIII (Constructive Fraud), Count IX (Negligent Misrepresentation), Count X
(Negligent Infliction of Emotional Distress), 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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February 3, 2017