Day et al v. Ethicon, Inc. et al

Filing 80

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgement) The 60 MOTION by Charlotte A. Day, Troy Day for Leave to File Declaration in Opposition to Defendants' Motion For Summary Judgment is GRANTED and 48 MOTION by Ethic on, 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 VI (common law fraud), Count VII (fraudulent concealment), Count VIII (constructive fraud), Count IX (negligent misrepresentation), Count X (negligent infliction of emotional distress), Count XI (breach of express warranty), Count XII (breach of implied warranty), Count X III (violation of consumer protection laws), Count XIV (gross negligence), Count XV (unjust enrichment), Count XVII (punitive damages), and Count XVIII (discovery rule and tolling). Ethicons Motion is DENIED in all other respects, as fully set forth herein. Signed by Judge Joseph R. Goodwin on 8/21/2017. (cc: counsel of record; any unrepresented party) (hkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CHARLOTTE A. DAY, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-02264

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”) and
the Plaintiffs’ Motion for Leave to File Declaration in Opposition to Defendants’
Motion for Summary Judgment (“Plaintiffs’ Motion”) [ECF No. 60]. Because the
Plaintiffs’ Motion [ECF No. 60] adequately remedies an objection raised by Ethicon
in its reply, it is GRANTED. As set forth below, Ethicon’s Motion for Summary
Judgment [ECF No. 48] is GRANTED in part and DENIED in part.
I.

Background
This action involves Tennessee co-plaintiffs, one of whom was implanted with

a mesh product manufactured by Ethicon, Tension-free Vaginal Tape (“TVT”), on May
24, 2006, at Centennial Surgery Center, Nashville, Tennessee, by Dr. Michael
Spalding. 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 50,000 cases currently pending, approximately 30,000 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. 210, In re Ethicon, Inc. Pelvic Repair Sys. Prods.

Liab.

Litig.,

No.

2:12-md-002327,

Dec.

18,

2015,

available

at

http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. The plaintiffs’ case was
selected as an “Ethicon Wave 3 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
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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).
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).

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B. Choice of Law
If a plaintiff files her claim directly into the MDL in the Southern District of
West Virginia, as Ms. Day 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.

Boston Scientific Corp., 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
implanted with the product.”). Ms. Day underwent the TVT implantation surgery in
Tennessee. Thus, the choice-of-law principles of Tennessee guide the court’s choiceof-law analysis.
Tennessee law employs “the most significant relationship test” to determine
which state’s substantive law to apply in a tort action. Hataway v. McKinley, 830
S.W.2d 53, 59 (Tenn. 1992). Under this test, the court must evaluate the contacts of
each interested state and determine which state “has the most significant contacts”
with the lawsuit. Id. In doing so, the court balances four factors: “(a) the place where
the injury occurred, (b) the place where the conduct causing the injury occurred, (c)
the domicile, residence, nationality, place of incorporation and place of business of
the parties, [and] (d) the place where the relationship, if any, between the parties is
centered.” Id. Here, Ms. Day is a resident of Tennessee, she was implanted with the

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product at issue in Tennessee, and her alleged injuries and follow-up care occurred
in Tennessee. Accordingly, I will apply Tennessee’s substantive law to this case.
III.

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

claims are without evidentiary or legal support.
A. Conceded Claims
The plaintiffs concede the following claims: Count II (strict liability –
manufacturing defect, Count VI (common law fraud), Count VII (fraudulent
concealment),

Count

VIII

(constructive

fraud),

Count

IX

(negligent

misrepresentation), Count X (negligent infliction of emotional distress), Count XI
(breach of express warranty), Count XII (breach of implied warranty), Count XIII
(violation of consumer protection laws), Count XIV (gross negligence), Count XV
(unjust enrichment), Count XVII (punitive damages), and Count XVIII (discovery
rule and tolling). 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
plaintiffs’ remaining claims challenged by Ethicon, including timeliness under the
Tennessee statutes of limitations. Accordingly, Ethicon’s Motion as to all remaining
claims is DENIED.
IV.

Conclusion
For the reasons discussed above, the court ORDERS that the Plaintiffs’ Motion
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[ECF No. 60] is GRANTED and 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: Count II (strict liability – manufacturing defect, Count
VI (common law fraud), Count VII (fraudulent concealment), Count VIII (constructive
fraud), Count IX (negligent misrepresentation), Count X (negligent infliction of
emotional distress), Count XI (breach of express warranty), Count XII (breach of
implied warranty), Count XIII (violation of consumer protection laws), Count XIV
(gross negligence), Count XV (unjust enrichment), Count XVII (punitive damages),
and Count XVIII (discovery rule and tolling). 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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August 21, 2017