Lindberg et al v. Ethicon, Inc. et al

Filing 52

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) The 39 MOTION by Ethicon, Inc., Ethicon, LLC, Johnson & Johnson for Summary Judgment is GRANTED in part and DENIED in part. Ethicon's Motion is GRANTED with regard to the following claims: Count II (Strict Liability - Manufacturing Defect), Count IV (Strict Liability - Defective Product), Count VI (Common Law Fraud), Count VII (Fraudulent Concealment), Count VIII (Constructive Fraud), Count IX (Negligent Misrepres entation), Count XI (Breach of Express Warranty), Count XII (Breach of Implied Warranty), Count XIII (Violation of Consumer Protection Laws), and Count XV (Unjust Enrichment). Ethicon's Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 3/9/2017. (cc: counsel of record; any unrepresented party) (kp)

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

CIVIL ACTION NO. 2:12-cv-01637

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. 39]
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 Illinois co-plaintiffs, one of whom was implanted with a

mesh product manufactured by Ethicon, Tension-free Vaginal Tape-Secur (“TVT-S”),
on May 19, 2010, at Methodist Medical Center, Peoria, Illinois, by Dr. W. Marc Boyd,
Jr. Am. Short Form Compl. [ECF No. 12] ¶¶ 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
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.,
475 U.S. 574, 587–88 (1986).
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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 plaintiffs’
substantive claims. Ethicon asserts that New Jersey law applies to the issue of
punitive damages; the plaintiffs dispute 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 a 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
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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. Boston Scientific Corp., 2:12-cv05762, 2014 WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014). Here, the plaintiffs filed
their initial complaint directly into the MDL in the Southern District of West Virginia.
Compl. [ECF No. 1]. The implantation surgery occurred in Illinois. Thus, the choiceof-law principles of Illinois guide this court’s choice-of-law analysis.
Illinois is the plaintiffs’ state of residence, where the TVT implant surgery took
place, and where their claimed injuries occurred. For the reasons discussed in Huskey

v. Ethicon, Inc., I agree with the parties that Illinois law applies to the plaintiffs’
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.
III.

Analysis
Ethicon argues it is entitled to summary judgment because the plaintiffs’

claims are without evidentiary or legal support.

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A. Conceded Claims
The plaintiffs concede the following claims: Count VI (Common Law Fraud),
Count VII (Fraudulent Concealment), Count VIII (Constructive Fraud), Count IX
(Negligent Misrepresentation), Count XI (Breach of Express Warranty), Count XII
(Breach of Implied Warranty), Count XIII (Violation of Consumer Protection Laws),
and Count XV (Unjust Enrichment). Accordingly, Ethicon’s Motion regarding those
claims is GRANTED.
B. Manufacturing Defect
Under Illinois strict product liability law, a plaintiff must prove that her injury
“resulted from a condition of the product, that the condition was unreasonably
dangerous, and that it existed at the time the product left the manufacturer’s
control.” Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 335 (Ill. 2008), opinion

modified on denial of reh’g (Dec. 18, 2008). “A manufacturing defect occurs when one
unit in a product line is defective, whereas a design defect occurs when the specific
unit conforms to the intended design but the intended design itself renders the
product unreasonably dangerous.” Salerno v. Innovative Surveillance Tech., Inc., 932
N.E.2d 101, 108 (Ill. App. Ct. 2010) (citing Blue v. Envtl. Eng’g, Inc., 828 N.E.2d 1128,
1137 (Ill. 2005)).
Here, the plaintiffs present no evidence that the specific TVT-S unit at issue
deviated from the product’s design specifications at the time it left Ethicon’s control.
Accordingly, Ethicon’s Motion on this point is GRANTED.
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C. Strict Liability – Defective Product
Ethicon moves for summary judgment on all of the plaintiffs’ strict liability
claims. I address Ethicon’s motion as to Count II (Strict Liability – Manufacturing
Defect) above in Section B. I address Ethicon’s motion as to Count III (Strict Liability
– Failure to Warn) and Count V (Strict Liability – Design Defect) below in Section D.
Here, I address only Ethicon’s motion as to Count IV (Strict Liability – Defective
Product).
Illinois recognizes three types of strict products liability: (1) manufacturing
defect, (2) design defect, and (3) failure to warn. See Mikolajczyk, 901 N.E.2d at 335,
339; Salerno 932 N.E.2d at 108. Ethicon appears to interpret the plaintiffs’ Count IV
to allege something beyond one of the three categories named above. The plaintiffs do
not address this point. To the extent that the plaintiffs attempt to allege a strict
liability claim beyond (1) manufacturing defect, (2) design defect, or (3) failure to
warn, Ethicon’s Motion as to Count IV (Strict Liability – Defective Product) is
GRANTED.
D. All Remaining Claims
The court FINDS that genuine disputes of material fact exist regarding the
plaintiffs’ remaining claims challenged by Ethicon. 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
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Summary Judgment [ECF No. 39] is GRANTED in part and DENIED in part.
Ethicon’s Motion is GRANTED with regard to the following claims: Count II (Strict
Liability – Manufacturing Defect), Count IV (Strict Liability – Defective Product),
Count VI (Common Law Fraud), Count VII (Fraudulent Concealment), Count VIII
(Constructive Fraud), Count IX (Negligent Misrepresentation), Count XI (Breach of
Express Warranty), Count XII (Breach of Implied Warranty), Count XIII (Violation
of Consumer Protection Laws), 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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March 9, 2017