Holmes v. Ethicon, Inc. et al

Filing 131

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) The 77 MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment Based Upon Bankruptcy Judicial Estoppel is DENIED without prejudice, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 9/13/2017. (cc: counsel of record; any unrepresented party) (kp)

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

CIVIL ACTION NO. 2:12-cv-1206

ETHICON, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Summary Judgment)
Pending before the court is the Motion for Summary Judgment Based upon
Bankruptcy Judicial Estoppel [ECF No. 77] (“Motion for Summary Judgment”) filed
by defendants Ethicon, Inc. and Johnson & Johnson (collectively, “Ethicon”). As set
forth below, Ethicon’s Motion is DENIED without prejudice.
I.

Background
This action involves an Illinois plaintiff who was implanted with a mesh

product manufactured by Ethicon, Tension-free Vaginal Tape (“TVT”), on January
14, 2010, at Heartland Regional Medical Center, Marion, Illinois, by Dr. Scott A.
Joyner. Am. Short Form Compl. [ECF No. 25] ¶¶ 1–12. 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 and
stress urinary incontinence. In the seven MDLs, there are approximately 45,000

cases currently pending, approximately 30,000 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
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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).
III.

Analysis
Ethicon argues it is entitled to summary judgment because Ms. Holmes lacks

standing or should be judicially estopped from bringing her MDL claims because she
did not properly disclose or schedule the claims during her Chapter 7 and Chapter 13
bankruptcy proceedings in the United States Bankruptcy Court for the Southern
District of Illinois. Development of these issues is best left to the district court where
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the bankruptcy was filed. That court, through the withdrawal or referral process, and
with the debtor’s counsel resident in that district, will have the necessary tools at its
disposal to fully develop the record on this matter and secure any necessary rulings
or further helpful information from the Article I bankruptcy court. The parties in this
case have agreed that proper venue resides in the United States District Court for
the Southern District of Illinois. Thus, Ethicon’s Motion is DENIED without prejudice
so that Ethicon may raise these issues after this case is transferred to the local
district court.
IV.

Conclusion
For the reasons discussed above, the court ORDERS that Ethicon’s Motion for

Summary Judgment [ECF No. 77] is DENIED without prejudice. 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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September 13, 2017