Cooper v. Ethicon, Inc. et al

Filing 69

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) The 53 MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment Based on the Statute of Limitations is DENIED; and 60 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: (II) strict liability - manufacturing defect, (IV) strict liability - defective product, (VI) commo n law fraud, (VII) fraudulent concealment, (VIII) constructive fraud, (IX) negligent misrepresentation, (X) negligent infliction of emotional distress, (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. Signed by Judge Joseph R. Goodwin on 6/16/2017. (cc: counsel of record; any unrepresented party) (ts)

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

CIVIL ACTION NO. 2:12-cv-02532

ETHICON, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Summary Judgment)
Pending before the court is the Defendant’s Motion for Summary Judgment
Based on the Statute of Limitations [ECF No. 53] filed by defendants Ethicon, Inc.
and Johnson & Johnson (collectively, “Ethicon”) and Defendant’s Motion for
Summary Judgment [ECF No. 60]. As set forth below, Ethicon’s Motion for Summary
Judgment Based on the Statute of Limitations [ECF No. 53] is DENIED and
Defendant’s Motion for Summary Judgment [ECF No. 60] is GRANTED in part and
DENIED in part.
I.

Background
This action involves an Arkansas plaintiff who was implanted with Tension-

free Vaginal Tape-Obturator (“TVT-O”), a mesh product manufactured by Ethicon.
Second 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
approximately 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. 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 plaintiff ’s 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
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
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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, as does this court, that Arkansas law applies to the
plaintiff’s claims. If a plaintiff files her claim directly into the MDL in the Southern
District of West Virginia, as Ms. Cooper did in this case, the court consults the choiceof-law rules of the state where the plaintiff was implanted with the product. See
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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
implanted with the product.”). Ms. Cooper underwent the TVT-O implantation
surgery in Arkansas. Second Am. Short Form Compl. [ECF No. 24] ¶ 11. Thus, the
choice-of-law principles of Arkansas guide the court’s choice-of-law analysis.
Arkansas courts consider the lex loci delicti doctrine and Dr. Robert A. Leflar’s
five choice-influencing factors in conjunction when analyzing choice of law problems.

Ganey v. Kawasaki Motors Corp., U.S.A., 234 S.W.3d 838, 847 (Ark. 2006); Schubert
v. Target Stores, Inc., 201 S.W.3d 917, 922-23 (Ark. 2005). “Under the doctrine of lex
loci delicti, the law of the place where the wrong took place is the proper choice of
law.” Ganey, 234 S.W.3d at 846. The five choice-influencing factors, promulgated by
Dr. Leflar, include (1) predictability of results, (2) maintenance of interstate and
international order, (3) simplification of the judicial task, (4) advancement of the
forum’s governmental interests, and (5) application of the better rule of law. Id. The
Leflar factors, however, are used only to soften “a rigid formulaic application” of the

lex loci delicti doctrine. See Gomez v. ITT Educ. Servs., Inc., 71 S.W.3d 542, 546 (Ark.
2002). In the case at bar, those factors are inapposite. The implantation surgery that
resulted in Ms. Cooper’s alleged injuries took place in Arkansas where Ms. Cooper is
a resident. Accordingly, Arkansas’s substantive law governs this case.

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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
of implied warranty, (XIII) violation of consumer protection laws, and (XV) unjust
enrichment. Accordingly, Ethicon’s Motion regarding those claims is GRANTED.
B. Strict Liability – Defective Product
Arkansas does not recognize a claim for “defective product.” Instead, state law
recognizes “three varieties of product defects: manufacturing defects, design defects,
and inadequate warnings.” West v. Searle & Co., 806 S.W.2d 608, 610 (Ark. 1991).
Accordingly, Ethicon’s Motion as to strict liability—defective product (count IV) is
GRANTED.
C. Negligent Infliction of Emotional Distress
“Arkansas does not recognize the tort of negligent infliction of emotional
distress.” Dowty v. Riggs, 385 S.W.3d 117, 120 (Ark. 2010) (citing FMC Corp. v.

Helton, 202 S.W.3d 490, 502 (Ark. 2005)). Accordingly, Ethicon’s Motion as to
negligent infliction of emotional distress (count X) is GRANTED.
D. All Remaining Claims
The court FINDS that genuine disputes of material fact exist regarding the
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plaintiff’s remaining claims challenged by Ethicon, including timeliness under the
Arkansas statute of limitations. 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 Based on the Statute of Limitations [ECF No. 53] is DENIED
and Defendant’s Motion for Summary Judgment [ECF No. 60] is GRANTED in part
and DENIED in part. Ethicon’s Motion is GRANTED with regard to the following
claims: (II) strict liability – manufacturing defect, (IV) strict liability – defective
product, (VI) common law fraud, (VII) fraudulent concealment, (VIII) constructive
fraud, (IX) negligent misrepresentation, (X) negligent infliction of emotional distress,
(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:

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June 16, 2017