Soltanshahi v. Ethicon, Inc. et al

Filing 54

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) The 46 MOTION by Ethicon Inc., Johnson & Johnson, Inc. for Summary Judgment is GRANTED in part and DENIED in part. Ethicon's Motion is GRANTED with regard to the following claim: Manufacturing Defect. Ethicon's Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 5/8/2017. (cc: counsel of record; any unrepresented party) (ts)

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

CIVIL ACTION NO. 2:12-cv-02688

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. 46]
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 an Illinois plaintiff who was implanted with a mesh

product manufactured by Ethicon, Tension-free Vaginal Tape (“TVT”), on February
1, 2002, at Anderson Hospital, Maryville, Illinois, by Dr. James Dalla-Riva. Compl.
[ECF No. 2] ¶¶ 1–8. 1 The case resides in one of seven MDLs assigned to me by the
Judicial Panel on Multidistrict Litigation concerning the use of transvaginal surgical

The plaintiff has not filed an Amended Short Form Complaint in this case; the original Complaint
includes seven counts: Count I (Negligence), Count II (Strict Liability – Design Defect), Count III
(Strict Liability – Manufacturing Defect), Count IV (Strict Liability – Failure to Warn), Count V
(Breach of Express Warranty), Count VI (Breach of Implied Warranty), and Count VII (Punitive
Damages). Compl.
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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. 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
of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the
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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 appear to agree that Illinois choice-of-law principles apply to this
case and that these principles compel the application of Illinois law to the plaintiff’s
substantive claims. In its Reply, Ethicon asserts in a footnote that the plaintiff’s
punitive damages claim is governed by New Jersey law. To determine the applicable
state law for a dispositive motion, I generally refer to the choice-of-law rules of the
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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 plaintiff files her claim directly
into the MDL in the Southern District of West Virginia, however, I consult the choiceof-law rules of the state in which 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). Here, the plaintiff filed her initial complaint in the Southern District
of Illinois. Compl. Thus, the choice-of-law principles of Illinois guide this court’s
choice-of-law analysis.
Illinois is the plaintiff’s state of residence, where the TVT implant surgery took
place, and where the claimed injuries occurred. For the reasons discussed in Huskey

v. Ethicon, Inc., I agree with the parties that Illinois law applies to the plaintiff’s
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 at this time what law
applies to punitive damages because Ethicon does not directly challenge punitive
damages.
III.

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

claims are without evidentiary or legal support.

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A. Manufacturing Defect
The plaintiff points to no evidence that the TVT device departed from its
intended design at the time it left Ethicon’s control. Accordingly, Ethicon’s Motion on
this point 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. 46] is GRANTED in part and DENIED in part.
Ethicon’s Motion is GRANTED with regard to the following claim: Manufacturing
Defect. 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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May 8, 2017