Guinn v. Ethicon, Inc. et al

Filing 117

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) Ethicon's 79 Motion for Summary Judgment is GRANTED in part and DENIED in part; Ethicon's Motion is GRANTED with regard to the following claims: Count I (negligen ce), Count II (manufacturing defect), Count IV (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 d istress), Count XI (breach of express warranty), Count XII (breach of implied warranty), Count XIII (violation of consumer protection laws), Count XIV (gross negligence), 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
SUSAN GUINN,
Plaintiff,
v.

CIVIL ACTION NO. 2:12-cv-01121

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. 79]
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 West Virginia plaintiff who was implanted with Tension-

free Vaginal Tape-Obturator (“TVT-O”), 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 Ohio 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 Western District of Missouri. Compl. [ECF No. 1]. Thus, the choice-of-law
3

principles of Missouri guide this court’s choice-of-law analysis.
Missouri follows the “most significant relationship” test, as outlined in section
145 of the Restatement (Second) of Conflict of Laws, in determining choice of law
questions. Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo. 1969). Section 145 directs
courts to consider four factors: “(a) the place where the injury occurred, (b) the place
where the conduct causing the injury occurred, (c) the domicile of the parties, and (d)
the place where the parties' relationship is centered.” Nelson v. Hall, 684 S.W.3d 350,
351–52 (Mo. Ct. App. 1984) (quoting Restatement (Second) of Conflict of Laws § 145
(1971)). Here, the implantation surgery that allegedly resulted in Ms. Olson’s injuries
took place in Ohio. While Ms. Guinn is a West Virginia resident, she also worked in
Ohio and received medical care for her alleged injuries in Ohio. Moreover, both
parties agree that Ohio is the proper choice of law. Accordingly, Ohio's substantive
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.
A.

Conceded Claims

The plaintiff concedes the following claims: Count II (manufacturing defect)
and Count IV (defective product), Accordingly, Ethicon’s Motion regarding those
claims is GRANTED.

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B.

Common Law Claims Abrogated by the Ohio Product Liability Act

The Ohio Products Liability Act (“OPLA”) is Ohio’s statutory vehicle for
product liability actions. See Wimbush v. Wyeth, 619 F.3d 632, 639 (6th Cir. 2010)
(applying Ohio law). In an attempt to streamline product liability claims, a 2005
amendment to the OPLA expressly eliminated “all common law product liability
claims or causes of action.” Ohio Rev. Code § 2307.71(B); Wimbush , 619 F.3d at 639.
Following are common law claims that have been abrogated by courts applying Ohio
law: Count I (negligence), 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 XI
(breach of express warranty), Count XII (breach of implied warranty), Count XIII
(violation of consumer protection laws), Count XIV (gross negligence), and Count XV
(unjust enrichment). In addition, the plaintiff has not opposed summary judgment on
her common law claims. Accordingly, Ethicon’s Motion regarding these claims is
GRANTED.
K.

All Remaining Claims

The court FINDS that genuine disputes of material fact exist regarding the
plaintiff’s 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
5

Summary Judgment [ECF No. 79] is GRANTED in part and DENIED in part.
Ethicon’s Motion is GRANTED with regard to the following claims: Count I
(negligence), Count II (manufacturing defect), Count IV (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 XI (breach of express warranty), Count XII (breach of
implied warranty), Count XIII (violation of consumer protection laws), Count XIV
(gross negligence), 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