Clayton et al v. Ethicon Inc et al
Filing
107
MEMORANDUM OPINION AND ORDER (Defendants Motion for Summary Judgment) The 73 MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment on All Claims is GRANTED in part and DENIED in part. Ethicon's Motion is GRANTED with regard to the fo llowing claims: Count I (negligence), Count II (strict liability - manufacturing defect), Count IV (strict liability - defective product), Count VI (common law fraud), Count VII (fraudulent concealment), Count VIII (constructive fraud), Count IX (neg ligent misrepresentation), Count X (negligent infliction of emotional distress), Count XII (breach of implied warranty), and Count XIII (violation of consumer protection laws). Ethicon's Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 3/9/2017. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
MELISSA CLAYTON, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 2:12-cv-00489
ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Summary Judgment)
Pending before the court is the Motion for Summary Judgment [ECF No. 73]
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 Louisiana co-plaintiffs, one of whom was implanted with
Prolift +M (“Prolift”), a mesh product manufactured by Ethicon. Am. Short Form
Compl. [ECF No. 25] ¶¶ 1–9. 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.,
475 U.S. 574, 587–88 (1986).
2
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 Louisiana law applies to the
plaintiffs’ 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 plaintiffs first
filed their claim. See In re Air Disaster at Ramstein Air Base, Ger., 81 F.3d 570, 576
(5th Cir. 1996). The plaintiffs originally filed this action in Louisiana. Thus, the
choice-of-law principles of Louisiana guide this court’s choice-of-law analysis.
3
Under Louisiana law, a tort claim “is governed by the law of the state whose
policies would be most seriously impaired if its laws were not applied” to the claim.
La. Civ. Code Ann. art. 3542 (listing factors such as place of injury, residence of
parties, and the state in which the relationship between parties was centered to
determine the appropriate state law). The plaintiffs are residents of Louisiana, Ms.
Clayton was implanted with the product at issue in Louisiana, and her alleged
injuries and follow-up care occurred in Louisiana. Accordingly, I will apply
Louisiana's substantive law to this case.
III.
Analysis
Ethicon argues it is entitled to summary judgment because the plaintiffs’
claims are without evidentiary or legal support.
A. Conceded Claims
The plaintiffs concede the following claims: Count I (negligence), Count IV
(strict liability – defective product), Count VI (common law fraud), Count VII
(fraudulent concealment), Count VIII (constructive fraud), Count IX (negligent
misrepresentation), 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. Strict Liability – Manufacturing Defect
The plaintiffs point to no evidence that the Prolift device departed from its
intended design at the time it left Ethicon’s control. Accordingly, Ethicon’s Motion on
4
this point is GRANTED.
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. 73] is GRANTED in part and DENIED in part.
Ethicon’s Motion is GRANTED with regard to the following claims: Count I
(negligence), Count II (strict liability – manufacturing defect), Count IV (strict
liability – defective product), Count VI (common law fraud), Count VII (fraudulent
concealment),
Count
VIII
(constructive
fraud),
Count
IX
(negligent
misrepresentation), Count X (negligent infliction of emotional distress), Count XII
(breach of implied warranty), and Count XIII (violation of consumer protection laws).
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:
5
March 9, 2017
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