Springer et al v. Johnson & Johnson et al

Filing 142

MEMORANDUM OPINION AND ORDER (Plaintiffs' Motion for Partial Summary Judgment) The 100 MOTION by Cherise Springer, Marty Springer for Partial Summary Judgment is GRANTED; and the 141 Memorandum Opinion and Order entered on 4/4/2017 is VACATED, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 4/5/2017. (cc: counsel of record; any unrepresented party) (kp)

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

CHERISE SPRINGER, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-00997

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

(Plaintiffs’ Motion for Partial Summary Judgment)
For reasons appearing to the court, it is ORDERED that the Memorandum
Opinion and Order [ECF No. 141] entered on April 4, 2017 is VACATED. Pending
before the court is the plaintiffs’ Motion for Partial Summary Judgment [ECF No.
100] wherein the plaintiffs move for partial summary judgment on various
affirmative defenses raised by defendants Ethicon, Inc. and Johnson & Johnson
(collectively, “Ethicon”). As set forth below, the plaintiffs’ Motion is GRANTED.
I.

Background
This action involves Louisiana co-plaintiffs, one of whom was implanted with

Tension-free Vaginal Tape-Obturator (“TVT-O”), a mesh product manufactured by
Ethicon. Am. Short Form Compl.[ECF No. 28] ¶¶ 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
A court may use partial summary judgment to dispose of affirmative defenses.

Int’l Ship Repair & Marine Servs., Inc. v. St. Paul Fire & Marine Ins. Co., 944 F. Supp.
886, 891 (M.D. Fla. 1996). 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
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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
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
3

(5th Cir. 1996). The plaintiffs originally filed this action in the Eastern District of
Louisiana. Thus, the choice-of-law principles of Louisiana guide this court’s choice-oflaw analysis.
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.
Springer 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
The plaintiffs argue they are entitled to summary judgment on the defendants’

affirmative defenses related to contributory negligence, comparative fault, and/or
comparative negligence of Ms. Springer’s physicians contained in ¶ 42 of the Master
Answer and Jury Demand of Defendant Ethicon, Inc. to First Amended Master
Complaint (“Ethicon’s Master Answer”) [ECF No. 100-3] and ¶ 44 of the Master
Answer and Jury Demand of Defendant Johnson & Johnson to First Amended Master
Complaint (“Johnson & Johnson’s Master Answer”) [ECF No. 100-4]. Pltfs.’ Mot.
Partial Summ. J. 1 [ECF No. 100]. The plaintiffs argue that their Motion should be
granted because the defenses are without evidentiary support. Mem. Supp. Mot.
Partial Summ. J., at 4–5 [ECF No. 101]. The defendants agree that this court should
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dismiss these affirmative defenses, and Ethicon withdraws the defenses contained in
¶ 42 of Ethicon’s Master Answer and ¶ 44 of Johnson & Johnson’s Master Answer.
Resp. Mem. Opp. Mot. Summ. J. 1 [ECF No. 108]. Accordingly, the plaintiffs’ Motion
is GRANTED.
IV.

Conclusion
For the reasons discussed above, the court ORDERS that the plaintiffs’ Motion

for Partial Summary Judgment [ECF No. 100] is GRANTED.
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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April 5, 2017