Pocztowski v. Ethicon, Inc. et al

Filing 95

MEMORANDUM OPINION AND ORDER (Plaintiff's Motion for Partial Summary Judgment) The 60 MOTION by Debra Pocztowski for Partial Summary Judgment is GRANTED to the extent that the affirmative defenses are based on the contributory negligence, com parative fault, and/or comparative negligence of the plaintiff's physicians. 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
DEBRA POCZTOWSKI,
Plaintiff,
v.

CIVIL ACTION NO. 2:12-cv-01470

ETHICON, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

(Plaintiff ’s Motion for Partial Summary Judgment)
Pending before the court is the plaintiff ’s Motion for Partial Summary
Judgment [ECF No. 60] wherein the plaintiff moves for partial summary judgment
on various affirmative defenses raised by defendants Ethicon, Inc. and Johnson &
Johnson (collectively, “Ethicon”). As set forth below, the plaintiff ’s Motion is
GRANTED in part and DENIED in part.
I.

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

product manufactured by Ethicon, Tension-free Vaginal Tape (“TVT”), on May 12,
2004, at Lutheran General Hospital, Park Ridge, Illinois, by Drs. Michael Noone,
Kristin Dolling, and Kelly Siudzinski. Am. Short Form Compl. [ECF No. 17] ¶¶ 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 plaintiff ’s 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
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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., 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 that Illinois choice-of-law principles apply to this case and
that these principles compel the application of Illinois law to the plaintiff’s
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substantive claims. Ethicon asserts that New Jersey law applies to the issue of
punitive damages; the plaintiff does not respond to this assertion.
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). If
a plaintiff files her claim directly into the MDL in the Southern District of West
Virginia, however, I consult the choice-of-law rules of the state in which the plaintiff
was implanted with the product. See Sanchez v. Bos. Sci. Corp., 2:12-cv-05762, 2014
WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014). Here, the plaintiff filed her initial
complaint in the Northern District of Illinois. Compl. [ECF No. 1]. Thus, the choiceof-law principles of Illinois guide this court’s choice-of-law analysis.
Illinois is the plaintiff’s state of residence, where the plaintiff received her TVT
implant surgery, and where her claimed injuries occurred. For the reasons discussed
in Huskey v. Ethicon, Inc., I agree with the parties that Illinois law applies to the
plaintiff’s substantive claims. See Huskey v. Ethicon, Inc., 29 F. Supp. 3d 736, 740–
41 (S.D. W. Va. 2014) (Illinois uses the “most-significant-relationship” test and
permits dépeçage—a separate choice-of-law analysis for each individual issue). In

Huskey, I also found that New Jersey law—rather than Illinois law—applied to the
Huskey plaintiffs’ punitive damages claim. Id. Here, I need not decide what law
applies to punitive damages at this time because Ethicon does not directly challenge
punitive damages.
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III.

Analysis
The plaintiff argues she is entitled to summary judgment on the defendants’

affirmative

defenses

of

contributory

negligence,

comparative

fault,

and/or

comparative negligence of her treating physicians. Specifically, the plaintiff
challenges ¶¶ 42, 45, 51, and 66 of the Master Answer and Jury Demand of Defendant
Ethicon, Inc. to First Amended Master Complaint (“Ethicon Master Answer”) [ECF
No. 60-2] and ¶¶ 44, 47, 53, and 67 of the Master Answer and Jury Demand of
Defendant Johnson & Johnson to First Amended Master Complaint (“Johnson &
Johnson Master Answer”) [ECF No. 60-3]. The plaintiff argues that her Motion should
be granted because the defenses are without legal or evidentiary support.
Ethicon agrees that this court should dismiss the affirmative defenses listed in
the Master Answers to the extent they are based on the purported negligence of the
plaintiff’s treating physicians, and Ethicon withdraws the defenses contained in
¶¶ 42 and 51 of Ethicon’s Master Answer and ¶¶ 44 and 53 of Johnson & Johnson’s
Master Answer. Accordingly, the plaintiff’s Motion with regard to these defenses is
GRANTED.
The court FINDS that genuine disputes of material fact exist regarding the
remaining defenses challenged by the plaintiff. Accordingly, the plaintiff’s Motion as
to the remaining defenses is DENIED.

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IV.

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

for Partial Summary Judgment [ECF No. 60] is GRANTED to the extent that the
affirmative defenses are based on the contributory negligence, comparative fault,
and/or comparative negligence of the plaintiff ’s physicians. 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:

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March 30, 2017