Wilson v. Ethicon, Inc. et al

Filing 73

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) The 48 MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment. Ethicon's Motion is GRANTED with regard to the following claims: (II) strict liability - manufacturing defect, (VI) common law fraud, (VII) fraudulent concealment, (VIII) constructive fraud, (IX) negligent misrepresentation, (XI) breach of express warranty, (XII) breach of implied warranty, (XIII) violation of consumer protection laws, and (XV) unjust enrichment. Ethicons Motion is DENIED in all other respects, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 4/11/2017. (cc: counsel of record; any unrepresented party) (ts)

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

CIVIL ACTION NO. 2:12-cv-02099

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. 48]
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 a New York plaintiff who was implanted with a mesh

product manufactured by Ethicon, Tension-free Vaginal Tape (“TVT”), on April 4,
2009, at Samaritan Medical Center, Watertown, New York, by Dr. Elizabeth Lucal.
Am. Short Form Compl. [ECF No. 24] ¶¶ 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
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).
2

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
If a plaintiff files her claim directly into the MDL in the Southern District of
West Virginia, as Ms. Wilson did in this case, the court consults the choice-of-law
rules of the state where the plaintiff was implanted with the product. See Sanchez v.

Bos. Sci. Corp., No. 2:12-cv-05762, 2014 WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014)
(“For cases that originate elsewhere and are directly filed into the MDL, the court
will follow the better-reasoned authority that applies the choice-of-law rules of the
originating jurisdiction, which in our case is the state in which the plaintiff was
3

implanted with the product.”). Ms. Wilson underwent the TVT implantation surgery
in New York. Thus, the choice-of-law principles of New York guide the court’s choiceof-law analysis.
The parties agree, as does the court, that these principles compel application
of New York substantive law to the plaintiff’s claims. New York applies the doctrine
of lex loci delicti unless a party demonstrates “special circumstances” that warrant a
departure from the general rule. Bader by Bader v. Purdom, 841 F.2d 38, 40 (2d Cir.
1988) (citing Neumeier v. Kuehner, 286 N.E.2d 454, 458 (N.Y. 1972)). Here, no such
circumstances exist. The plaintiff resides in New York, and her implantation surgery
occurred in New York. Am. Short Form Compl. ¶ 11. New York has a strong interest
in resolving tort actions brought by one of its citizens for injuries arising from conduct
alleged to have occurred within its territorial jurisdiction. Thus, I will apply New
York substantive law to this case.
III.

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

claims are without evidentiary or legal support.
A. Conceded Claims
The plaintiff concedes the following claims: (II) strict liability – manufacturing
defect, (VI) common law fraud, (VII) fraudulent concealment, (VIII) constructive
fraud, (IX) negligent misrepresentation, (XI) breach of express warranty, (XII) breach

4

of implied warranty, (XIII) violation of consumer protection laws, and (XV) unjust
enrichment. Accordingly, Ethicon’s Motion regarding those claims is GRANTED.
B. All Remaining Claims
The court FINDS that genuine disputes of material fact exist regarding the
plaintiff’s 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

Summary Judgment [ECF No. 48] is GRANTED in part and DENIED in part.
Ethicon’s Motion is GRANTED with regard to the following claims: (II) strict liability
– manufacturing defect, (VI) common law fraud, (VII) fraudulent concealment, (VIII)
constructive fraud, (IX) negligent misrepresentation, (XI) breach of express warranty,
(XII) breach of implied warranty, (XIII) violation of consumer protection laws, and
(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:

5

April 11, 2017