Wise et al v. C. R. Bard, Inc.

Filing 224

MEMORANDUM OPINION AND ORDER (Defendant's Motion for Summary Judgment) denying as moot in part, granting in part, and denying in part 102 MOTION by C. R. Bard, Inc. for Summary Judgment or, in the Alternative, for Partial Summary Judgment as to Debra Wise and Ronald Wise Whose Claims are Governed by West Virginia Law, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 2/5/2015. (cc: counsel of record; any unrepresented party) (ts)

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

DEBRA WISE, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-01378

C. R. BARD, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
(Defendant’s Motion for Summary Judgment)
Pending before the court is defendant C. R. Bard, Inc.’s Motion for Summary Judgment
or, in the Alternative, for Partial Summary Judgment (“Motion for Summary Judgment”)
[Docket 102]. Responses and replies have been filed, and the motion is ripe for review. For the
reasons set forth below, the defendant’s Motion for Summary Judgment [Docket 102] is
DENIED as moot in part, GRANTED in part, and DENIED in part.
I.

Background
This 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 70,000 cases currently pending, approximately 10,000 of which are in the C. R. Bard, Inc.
(“Bard”) MDL, MDL 2187. In this particular case, the plaintiff, Debra Wise, was surgically
implanted with the Avaulta Plus Anterior Support System and the Avaulta Plus Posterior Support
System (collectively “Avaulta Plus”), mesh products manufactured by Bard to treat POP. (See

Short Form Compl. [Docket 1], at 2).1 The plaintiff received her surgery in West Virginia. (Id. at
4). The plaintiff claims that as a result of implantation of the Avaulta Plus, she has experienced
multiple complications, including vaginal spasms, damage to her ureter, vagina, and rectum,
kidney reflux, urinary tract infections, chronic constipation, dyspareunia (pain during sexual
intercourse), lower pelvic pain, incontinence, and kidney stones. (See Pl. Fact Sheet [Docket
102-9], at 7). The plaintiff alleges negligence, strict liability for design defect, strict liability for
manufacturing defect, strict liability for failure to warn, breach of express warranty, breach of
implied warranty, and punitive damages. (Short Form Compl. [Docket 1], at 4). Additionally, the
plaintiff’s husband, Ronald Wise, alleges loss of consortium. (Id.).
In the instant motion, Bard moves for summary judgment on the plaintiffs’ claims under
both Ohio and West Virginia Law.2 However, as explained below, because I FIND that the laws
of West Virginia govern in this case, I will address only those claims Bard seeks dismissal of
under West Virginia law: (1) negligent inspection, packaging, marketing, and selling; (2)
manufacturing defect (negligence and strict liability); (3) failure to warn (negligence and strict
liability); (4) breach of warranty (express and implied); and (5) punitive damages.3
II.

Legal Standards
a. Summary Judgment
To obtain summary judgment, the moving party must show that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.

1

The present case is part of Wave 1 of the Bard MDL, MDL 2187. (Pretrial Order # 118 (Docket Control Order for
Selection and Discovery of 200 Cases) [Docket 15]). Because the parties agree that the Southern District of West
Virginia is the proper venue, I set this case for trial in the Southern District. (See Am. Joint Submission, MDL 2187
[Docket 1004], at 8; see also Order [Docket 63]).
2
Bard contends that Ohio law governs the substance of the plaintiffs’ claims. However, Bard also provides
arguments under West Virginia law in the event that the court rejects its choice of law determination. (See Def.’s
Mem. Supp. [Docket 103], at 2, n.2).
3
The court’s disposition on the defendant’s Motion for Partial Summary Judgment on Plaintiffs’ Punitive Damages
Claims [Docket 105] is fully explained in a separate memorandum opinion and order.

2

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., Ltd. 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 Felty v. Graves-Humphreys Co., 818
F.2d 1126, 1128 (4th Cir. 1987); Ross v. Comm’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.
1985), abrogated on other grounds, 490 U.S. 228 (1989).
b. Choice of Law
Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in MDL cases
such as this. The choice of law for these pretrial motions depends on whether they involve
federal or state law. “When analyzing questions of federal law, the transferee court should apply
the law of the circuit in which it is located. When considering questions of state law, however,
the transferee court must apply the state law that would have applied to the individual cases had

3

they not been transferred for consolidation.” In re Temporomandibular Joint (TMJ) Implants
Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (internal citations omitted). In cases
based on diversity jurisdiction, the choice-of-law rules to be used are those of the states where
the actions were originally filed. See In re Air Disaster at Ramstein Air Base, Ger., 81 F.3d 570,
576 (5th Cir. 1996) (“Where a transferee court presides over several diversity actions
consolidated under the multidistrict rules, the choice of law rules of each jurisdiction in which
the transferred actions were originally filed must be applied.”); In re Air Crash Disaster Near
Chi., Ill., 644 F.2d 594, 610 (7th Cir. 1981); In re Digitek Prods. Liab. Litig., MDL No. 2:08md-01968, 2010 WL 2102330, at *7 (S.D. W. Va. May 25, 2010). The plaintiff is an Ohio
resident who was implanted with the Avaulta Plus in West Virginia and therefore, filed her
complaint directly into MDL 2187 in the Southern District of West Virginia. Accordingly, I
apply West Virginia choice-of-law rules.
In West Virginia, the applicable substantive law in tort cases is the law of the place of
injury. See McKinney v. Fairchild Intern., Inc., 487 S.E.2d 913, 922 (W. Va. 1997)
(“Traditionally, West Virginia courts apply the lex loci delicti choice-of-law rule; that is, the
substantive rights between the parties are determined by the law of the place of injury.”). West
Virginia courts have deviated from this rule only in occasions of “particularly thorny conflicts
problems,” including “complex, or unusual, contractual situations . . . and torts which very
existence are dependent upon the brea[d]th and legality of contracts.” Ball v. Joy Mfg. Co., 755
F. Supp. 1344, 1351 (S.D. W. Va. 1990) (quoting Oakes v. Oxygen Therapy Servs., 363 S.E.2d
130, 131 (W. Va. 1987)).
The plaintiffs assert that West Virginia substantive law should apply to this case because
Ms. Wise was implanted with the allegedly defective product in Huntington, West Virginia.

4

(Short Form Compl. [Docket 1], at 4). While Bard acknowledges that Ms. Wise’s surgery took
place in West Virginia, Bard nevertheless argues that Ohio law should apply to her claims, given
that the plaintiffs reside in Ohio and that Ms. Wise received treatment for her alleged injuries in
Ohio. Bard’s argument is not supported by the West Virginia choice-of-law principle of lex loci
delicti, which, as stated above, focuses on where the injury occurred, not where the plaintiff
resides or was treated. See, e.g., West Virginia ex rel. Chemtall Inc. v. Madden, 607 S.E.2d 772,
779–80) (W. Va. 2004) (holding that in a toxic tort case, the court must apply the substantive
laws of the state in which the plaintiff’s alleged exposure occurred); see also Quillen v. Int’l
Playtex, Inc., 789 F.2d 1041, 1044 (4th Cir. 1986) (“[T]he place of the wrong for purposes of the
lex loci delicti rule, however, is defined as the place where the last event necessary to make an
act[or] liable for an alleged tort takes place.” (internal quotations omitted)). Here, the injury—
that is, the last event necessary to make an actor liable for an alleged tort—took place in West
Virginia, where Ms. Wise was implanted with the allegedly defective device. The fact that Ms.
Wise received treatment for that injury elsewhere does not alter the lex loci delicti analysis.
Consequently, I FIND that West Virginia law applies to this litigation.4
III.

Analysis
a. Negligent Inspection, Packaging, Marketing, and Selling
First, Bard contends that the plaintiffs’ claims for negligent inspection, packaging,

marketing, and selling of the Avaulta Plus, to the extent they are distinct, all fail for lack of
evidence. (Bard’s Mem. of Law. in Supp. of Mot. for Summ. J. (“Bard’s Mem. Supp.”) [Docket
103], at 11). In response, the plaintiffs state that they “do not attempt to allege separate and
4

I also note that this MDL does not present the “thorny conflicts problems” that have sometimes led West Virginia
courts to depart from lex loci delicti, Oakes, 363 S.E.2d at 131, nor does it raise public policy concerns that would
call for application of a state other than the state where the injury occurred. See Paul v. Nat’l Life, 352 S.E.2d 550,
556 (W. Va. 1986) (stating that West Virginia’s choice-of-law principles “do[] not require the application of the
substantive law of a foreign state when that law contravenes the public policy of this State”).

5

distinct claims, each standing alone, of ‘negligent inspection,’ ‘negligent marketing,’ ‘negligent
labeling,’ ‘negligent packing’ and ‘negligent selling.’” (Pls.’ Resp. in Opp. to Bard’s Mot. for
Summ. J. (“Pls.’ Opp.”) [Docket 180], at 4). Accordingly, Bard’s Motion for Summary Judgment
with regard to negligent inspection, packing, marketing, and selling of the Avaulta Plus is
DENIED as moot.
b. Manufacturing Defect
Next, Bard argues that the plaintiffs’ manufacturing defect claims fail for lack of
evidence. (Bard’s Mem. Supp. [Docket 103], at 2). The plaintiffs do not contest Bard’s motion
with regard to manufacturing defect. (Pls.’ Opp. [Docket 180], at 9-10). Accordingly, Bard’s
Motion for Summary Judgment on the plaintiffs’ manufacturing defect claims is GRANTED,
and these claims are DISMISSED.
c. Failure to Warn5
Next, Bard contends that the plaintiffs’ failure to warn claims fail for lack of proximate
cause. (Bard’s Mem. Supp. [Docket 103], at 2). In particular, Bard states:
Dr. Nutt was aware of all risks related to the Avaulta Plus system known or
reasonably known by July 16, 2007, and there is no additional information learned
since about the product, known at the time of implant, that would have changed
his treatment and care decisions related to Ms. Wise.
(Bard’s Mem. Supp. [Docket 103], at 20).6
A defect arising from failure to warn “covers situations when a product may be safe as
designed and manufactured,” but then “becomes defective because of the failure to warn of
5

In Tyree, et al. v. Boston Scientific Corp., I decided as a matter of first impression, “that the learned intermediary
doctrine would apply in West Virginia where a device manufacturer has not participated in [direct to consumer]
advertising[.]” No. 2:12-cv-08633, 2014 WL 5431993, at *6 (S.D. W. Va. Oct. 23, 2014). That decision governs in
this case.
6
In its analysis of failure to warn under Ohio law, particularly in reference to Doane v. Givuadan Flavors Corp.,
919 N.E.2d 290 (Ohio Ct. App. 2009), Bard introduces the argument that what Bard knew or should have known
about their product after a plaintiff’s implant date is immaterial. I tend to disagree with Bard’s interpretation of
Doane. Furthermore, because I have determined that the substantive laws of West Virginia govern the plaintiffs’
case, Bard’s repeated emphasis on risks—or the lack thereof—known at the date of implant holds very little weight.

6

dangers which may be present when the product is used in a particular manner.” Ilosky v.
Michelin Tire Corp., 307 S.E.2d 603, 609 (W. Va. 1983). To substantiate a failure to warn claim
under strict liability, the plaintiff must show that the failure to adequately warn “made the
product not reasonably safe” and “that the defect was the probable cause of her injuries.” Id. at
610.
I agree with the plaintiffs that many of Bard’s references to Dr. Nutt’s testimony have
been “artfully taken out of context.” (Pls.’ Opp. [Docket 180], at 17). In addition to explaining
the testimony utilized by Bard, the plaintiffs have also pointed to numerous instances where Dr.
Nutt stated he would not have used the Avaulta Plus had he been warned of certain risks. (Id. at
20). Therefore, the plaintiffs have presented sufficient evidence on the inadequacy of Bard’s
warnings and on the existence of proximate cause to show there is a genuine dispute of material
fact. Accordingly, Bard’s Motion for Summary Judgment on the plaintiffs’ failure to warn claims
is DENIED.
d. Breach of Warranty
Lastly, Bard argues that the plaintiffs cannot sustain their claims for breach of warranty,
both express and implied, because the learned intermediary doctrine applies to each of these
claims, making them indistinguishable from the plaintiffs’ failure to warn claims. (See Def.’s
Mem. Supp. [Docket 103], at 20-25). The plaintiffs do not contest summary judgment with
regard to express warranty. (Pls.’ Opp. [Docket 180], at 26). I previously granted similar motions
under both Illinois and Arizona law. See Huskey v. Ethicon, Inc., No. 2:12-cv-05201, 2014 WL
3362287, at *6-7 (S.D. W. Va. July 8, 2014) (applying Illinois state law); see also Bellew v.
Ethicon, Inc., et al., No. 2:13-cv-2473, 2014 WL 6886129, at *5-6 (S.D. W. Va. Nov. 24, 2014)
(applying Arizona state law). As noted above, like Huskey and Bellew, the learned intermediary

7

doctrine applies in this products liability action. See generally Tyree, 2014 WL 5431993. “The
learned intermediary doctrine stands for the proposition that a drug manufacturer is excused from
warning each patient who receives the product when the manufacturer properly warns the
prescribing physician of the product’s dangers.” State ex rel. Johnson & Johnson Corp. v. Karl,
647 S.E.2d 899, 902-03 (W. Va. 2007) (internal quotation marks omitted). While the parties in
this case have not relied on precisely the same arguments, my reasoning and conclusions from
Huskey still govern.
In Huskey, I ruled as follows:
Ethicon argues that because Illinois’s learned intermediary doctrine does not
require medical device manufacturers to warn end-users, the doctrine should bar
the fraud-based claims premised on representations made to Ms. Huskey.
Otherwise, Ethicon contends, plaintiffs could simply plead around the learned
intermediary doctrine by characterizing failure-to-warn claims as fraud claims.
Illinois courts have not directly addressed this issue. However, courts around the
country have extended the learned intermediary doctrine to all claims based on a
manufacturer’s failure to warn, including claims for fraud, misrepresentation, and
breach of warranty. See, e.g., Talley v. Danek Med., Inc., 179 F.3d 154, 163-64
(4th Cir. 1999) (barring breach of warranty and fraud claims); Lee v. Mylan, Inc.,
806 F. Supp. 2d 1320, 1325 (M.D. Ga. 2011) (negligent misrepresentation and
breach of warranty claims); Beale v. Biomet, Inc., 492 F. Supp. 2d 1360, 1372
(S.D. Fla. 2007) (negligent misrepresentation); Southern v. Pfizer, Inc., 471 F.
Supp. 2d 1207, 1218 (N.D. Ala. 2006) (fraudulent misrepresentation); In re
Norplant Contraceptive Prods. Liab. Litig., 955 F. Supp. 700, 709 (E.D. Tex.
1997) (misrepresentation and implied warranty); Centocor, Inc. v. Hamilton, 372
S.W.3d 140, 169 (Tex. 2012) (fraud by omission).
Here, the plaintiffs’ fraud-based claims and warranty claims are simply
repackaged failure-to-warn claims.
...
If the learned intermediary doctrine “could be avoided by casting what is
essentially a failure to warn claim under a different cause of action . . . then the
doctrine would be rendered meaningless.” In re Norplant Contraceptive Products
Liab. Litig., 955 F. Supp. 700, 709 (E.D. Tex. 1997). Accordingly, I predict with
confidence that, if confronted with this issue, the Illinois Supreme Court would
hold that the learned intermediary doctrine applies to all claims based on a
medical device manufacturer’s failure to warn, including fraud, fraudulent
8

concealment, constructive fraud, negligent misrepresentation, and breach of
warranty. Therefore, Ethicon’s motion for summary judgment on fraud-based
claims and warranty claims is GRANTED.
Huskey, 2014 WL 3362287, at *6-7. Accordingly, Bard’s Motion for Summary Judgment with
regard to the plaintiffs’ breach of warranty claims is GRANTED, and these claims are
DISMISSED.
IV.

Conclusion
For the reasons set forth above, the defendant’s Motion for Summary Judgment [Docket

102] is DENIED as moot in part, GRANTED in part, and DENIED in part.
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 5, 2015