Higgins et al v. Ethicon, Inc.

Filing 104

MEMORANDUM OPINION AND ORDER (Plaintiffs' Motion for Partial Summary Judgment) The 64 MOTION by Bob Higgins, Susan Higgins for Partial Summary Judgment is GRANTED with regard to the affirmative defenses listed in 4, 36, 41, 43, 44, 45, 49, 50, 52, 56, 58, and 61. The court further ORDERS that the plaintiffs' Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 3/30/2017. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
SUSAN HIGGINS, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-01365

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

(Plaintiffs’ Motion for Partial Summary Judgment)
Pending before the court is the plaintiffs’ Motion for Partial Summary
Judgment [ECF No. 64] 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 in part and DENIED in part.
I.

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

mesh product manufactured by Ethicon, the Gynecare Tension-free Vaginal TapeSECUR (“TVT-S”) on August 25, 2006. Am. Short Form Compl. [ECF No. 13] ¶¶ 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 (“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. 206, In re Ethicon, Inc. Pelvic Repair Sys. Prods.

Liab.

Litig.,

No.

2:12-md-002327,

Nov.

20,

2015,

available

at

http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. The plaintiffs’ case was
selected as an “Ethicon Wave 2 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
2

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 plaintiffs originally filed their claim the Southern District of Texas. See
Compl. [ECF No. 1]. Thus, the choice-of-law principles of Texas guide the court’s
choice-of-law analysis. See Klaxon Co. v. Stentor Elect. Mfg. Co., 313 U.S. 487, 496
(1941).
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The parties agree, as does the court, that these principles compel application
of Texas substantive law to the plaintiffs’ claims. In tort actions, Texas adheres to the
Restatement (Second) of Conflict of Laws (Am. Law Inst. 1971). Gutierrez v. Collins,
583 S.W.2d 312, 318 (Tex. 1979). Under section 145 of the Restatement, the court
must apply the law of the state with the most “significant relationship to the
occurrence and the parties.” Here, the plaintiffs reside in Texas, and Ms. Higgins’
implantation surgery occurred in Texas. Am. Short Form Compl. ¶ 11. Texas has a
strong interest in resolving tort actions brought by its citizens for injuries arising
from conduct alleged to have occurred within its territorial jurisdiction. Thus, I will
apply Texas substantive law to this case.
III.

Analysis
The plaintiffs argue they are entitled to summary judgment on the defendants’

affirmative defenses related to ¶¶ 4, 5, 32, 36, 41–45, 49–52, 54, 56–58, and 61 of the
Master Answer and Jury Demand of Defendant Ethicon, Inc. to First Amended
Master Complaint (“Ethicon’s Master Answer”) [ECF No. 265]. Mem. Supp. Mot.
Partial Summ. J., at 3 [ECF No. 65]. The plaintiffs argue that their Motion should be
granted because the defenses are without evidentiary support. Pltfs.’ Mot. Partial
Summ. J. 1–2 [ECF No. 64]. Ethicon withdrew the defenses contained in ¶¶ 4, 36, 41,
43, 44, 45, 49, 50, 52, 56, 58, and 61 of Ethicon’s Master Answer. Resp. Mem. Opp.
Mot. Summ. J. 2 [ECF No. 72]. Accordingly, the plaintiffs’ Motion with regard to these
defenses is GRANTED.

4

The court FINDS that genuine disputes of material fact exist regarding the
plaintiffs’ remaining claims challenged by Ethicon. Accordingly, the plaintiffs’ Motion
as to the remaining defenses is DENIED.
IV.

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

for Partial Summary Judgment [ECF No. 64] is GRANTED with regard to the
affirmative defenses listed in ¶¶ 4, 36, 41, 43, 44, 45, 49, 50, 52, 56, 58, and 61. The
court further ORDERS that the plaintiffs’ 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 30, 2017