Green v. Johnson & Johnson et al
Filing
92
MEMORANDUM OPINION AND ORDER (Plaintiff's Motion for Partial Summary Judgment) The plaintiff's 65 Motion for Partial Summary Judgment is GRANTED to the extent that the affirmative defenses are based on the comparative and/or contributory fault of plaintiff's physicians. The plaintiff's Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 3/21/2017. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JANICE GREEN,
Plaintiff,
v.
CIVIL ACTION NO. 2:12-cv-02148
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. 65] 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 a Texas plaintiff who was implanted with mesh products
manufactured by Ethicon, Gynecare Tension-free Vaginal Tape (“TVT”), on
March 27, 2008. Am. Short Form Compl. [ECF No. 18] ¶¶ 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
for summary judgment, the court will not “weigh the evidence and determine the
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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
If a plaintiff files her claim directly into the MDL in the Southern District of
West Virginia, as Ms. Green 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
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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
implanted with the product.”). Ms. Green underwent the TVT implantation surgery
in Texas. Thus, the choice-of-law principles of Texas guide the court’s choice-of-law
analysis.
The parties agree, as does the court, that these principles compel application
of Texas substantive law to the plaintiff’s 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 plaintiff resides in Texas, and her implantation
surgery occurred in Texas. Am. Short Form Compl. ¶ 11. Texas 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 Texas
substantive law to this case.
III.
Analysis
The plaintiff argues she is entitled to summary judgment on the defendants’
affirmative defenses related to contributory negligence, comparative fault, and/or
comparative negligence of Ms. Green’s physicians contained in ¶¶ 42, 45, 51, and 66
of the Master Answer and Jury Demand of Defendant Ethicon, Inc. to First Amended
Master Complaint (“Ethicon’s Master Answer”) [ECF No. 65-2] and ¶¶ 44, 47, 53, and
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67 of the Master Answer and Jury Demand of Defendant Johnson & Johnson to First
Amended Master Complaint (“Johnson & Johnson’s Master Answer”) [ECF No. 653]. Pltf.’s Mot. Partial Summ. J. 1–2. [ECF No. 65]. Ms. Green argues that her Motion
should be granted because the defenses are without evidentiary support. Mem. Supp.
Mot. Partial Summ. J., at 4–5, [ECF No. 66]. The defendants agree that this court
should dismiss two of the affirmative defenses listed in their Master Answer to the
extent they are based on the purported negligence of plaintiff’s physicians, and
Ethicon withdrew the defenses contained in ¶ 42 of Ethicon’s Master Answer and
¶ 44 of Johnson & Johnson’s Master Answer. Resp. Mem. Opp. Mot. Summ. J. 1 [ECF
No. 78]. Accordingly, the plaintiff’s Motion with regard to these defenses is
GRANTED.
The court FINDS that genuine disputes of material fact exist regarding the
plaintiff’s remaining claims challenged by Ethicon. Accordingly, the plaintiff’s Motion
as to the remaining defenses is DENIED.
IV.
Conclusion
For the reasons discussed above, the court ORDERS that the plaintiff ’s Motion
for Partial Summary Judgment [ECF No. 65] is GRANTED to the extent that the
affirmative defenses are based on the comparative and/or contributory fault of
plaintiff ’s physicians. The court further ORDERS that the plaintiff ’s Motion is
DENIED in all other respects.
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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 21, 2017
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