Mullins et al v. Johnson & Johnson et al
Filing
1549
MEMORANDUM OPINION AND ORDER (Defendant's Motion for Partial Summary Judgment re: Reta Dillon, et al., No. 2:13-cv-02919) granting in part and denying in part 1048 MOTION by Ethicon, Inc., Johnson & Johnson for Partial Summary Judgment (Reta D illon, Perry Dillon); Ethicon's Motion is GRANTED with regard to the following claims: manufacturing defect, negligent infliction of emotional distress, fraud, fraudulent concealment, constructive fraud, negligent misrepresentation, breach of ex press warranty, violation of consumer protection laws, unjust enrichment, strict liability - defective product, breach of implied warranty of fitness for a particular purpose, and failure to warn; and Ethicon's Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 1/19/2017. (cc: counsel of record; any unrepresented party) (mek)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TERRESKI MULLINS, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 2:12-cv-02952
ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Partial Summary Judgment
re: Reta Dillon, et al., No. 2:13-cv-02919)
Pending before the court is the defendants’ Motion for Partial Summary
Judgment [ECF No. 1048]. As set forth below, the defendants’ Motion is GRANTED
in part and DENIED in part.
I.
Background
This case represents the consolidation of twenty-six out of nearly 28,000 cases
filed against Ethicon, Inc. and Johnson & Johnson, Inc. (collectively “Ethicon”). The
Ethicon MDL is one of seven MDLs assigned to me related to pelvic mesh, collectively
encompassing over 60,000 cases. This action involves twenty-six West Virginia
plaintiffs who were implanted with Tension-free Vaginal Tape (“TVT”), a mesh
product manufactured by Ethicon to treat stress urinary incontinence (“SUI”). These
cases have been consolidated on all claims. See Pretrial Order No. 184 [ECF No. 25]
(“PTO”); Fourth Am. Docket Control Order [ECF No. 258]; Order, Dec. 27, 2016, at 2
[ECF No. 1527] (“The trial will address all triable issues in each 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).
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
2
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
“[B]ecause the plaintiffs are West Virginia residents and had their surgeries
at hospitals in West Virginia, the cases solely implicate West Virginia law.” Pretrial
Order No. 184 at 4 (citing McKinney v. Fairchild Intern., Inc., 487 S.E.2d 913, 922
(W. Va. 1997) (“Traditionally, West Virginia courts apply the lex loci delicti choice-oflaw rule; that is, the substantive rights between the parties are determined by the
law of the place of injury.”)). Accordingly, West Virginia law governs the
plaintiffs’ case.
III.
Analysis
Ethicon argues it is entitled to summary judgment because the plaintiffs’ legal
theories are without evidentiary or legal support.
A.
Conceded Claims
The plaintiffs concede the following claims: manufacturing defect, negligent
infliction of emotional distress, fraud, fraudulent concealment, constructive fraud,
negligent misrepresentation, breach of express warranty, violation of consumer
protection laws, unjust enrichment, and strict liability—defective product. Pls.’ Resp.
20 [ECF No. 1303]. Accordingly, Ethicon’s Motion regarding those claims
is GRANTED.
3
B.
Failure to Warn
The evidence shows that Ms. Dillon’s implanting physician did not rely on the
TVT’s Instructions for Use and that any other warning would not have altered his
decision to perform the surgery on Ms. Dillon. See generally Dr. Sze Dep., May 13,
2016 [ECF No. 1048-14]; Dr. Sze Dep., June 26, 2016 [ECF No. 1048-1]. Based on the
evidence, the operation of the learned intermediary doctrine stymies the plaintiff’s
failure to warn claims against Ethicon. See Tyree v. Bos. Sci. Corp., 56 F. Supp. 3d
826, 833 (S.D. W. Va. 2014) (predicting that the West Virginia Supreme Court would
apply the learned intermediary doctrine in the medical device context). Accordingly,
Ethicon’s Motion on this point is GRANTED.
C.
Breach of Implied Warranty (Fitness for a Particular Purpose)
The plaintiffs have not presented any evidence that Ms. Dillon’s physician
selected her TVT device for anything other than its intended purpose, which is the
treatment of SUI. See W. Va. Code. § 46-2-315; see also Keffer v. Wyeth, 791 F. Supp.
2d 539, 547 (S.D. W. Va. 2011) (Copenhaver, J.) (noting that W. Va. Code § 46-2-315
“requires a particular purpose that differs from the ordinary purpose for which the
goods are generally used”). Accordingly, Ethicon’s Motion on this point is GRANTED.
D.
All Remaining Claims
The court FINDS that genuine disputes of material fact exist regarding the
plaintiffs’ remaining claims challenged by Ethicon. Accordingly, Ethicon’s Motion as
to all remaining claims is DENIED.
4
IV.
Conclusion
For the reasons discussed above, it is ORDERED that Ethicon’s Motion for
Partial Summary Judgment [ECF No. 1048] is GRANTED in part and DENIED in
part. Ethicon’s Motion is GRANTED with regard to the following claims:
manufacturing defect, negligent infliction of emotional distress, fraud, fraudulent
concealment, constructive fraud, negligent misrepresentation, breach of express
warranty, violation of consumer protection laws, unjust enrichment, strict liability—
defective product, breach of implied warranty of fitness for a particular purpose, and
failure to warn. 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
January 19, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?