Currie v. Johnson & Johnson et al

Filing 69

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) granting in part and denying in part 51 MOTION for Summary Judgment. Ethicon's Motion is GRANTED with regard to the following claims: manufacturing defect, unjust enrichment, and violation of consumer protection laws; Ethicon's Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 7/5/2017. (cc: counsel of record; any unrepresented party) (mks)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ANNE M. CURRIE,
Plaintiff,
v.

CIVIL ACTION NO. 2:12-cv-02955

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. 51]
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 a Tennessee plaintiff who was implanted with a mesh

product manufactured by Ethicon, Tension-free Vaginal Tape-Abbrevo (“TVT-A”), on
April 11, 2011, at Methodist University Hospital, Memphis, Tennessee, by Dr.
Christopher J. Pugh. 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 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
court will draw any permissible inference from the underlying facts in the light most
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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. Currie 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
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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. Currie underwent the TVT-A implantation
surgery in Tennessee. Thus, the choice-of-law principles of Tennessee guide the
court’s choice-of-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. Currie is a resident of Tennessee, she was implanted with
the 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 plaintiff’s

claims are without evidentiary or legal support.

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A. Conceded Claims
The plaintiff concedes the following claims: manufacturing defect, unjust
enrichment, and violation of consumer protection laws. 1 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
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. 51] is GRANTED in part and DENIED in part.
Ethicon’s Motion is GRANTED with regard to the following claims: manufacturing
defect, unjust enrichment, and violation of consumer protection laws. 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:

1

July 5, 2017

The court notes that the plaintiff did not formally allege Count XIII, Violation of Consumer Protection Laws, in her
Amended Short Form Complaint. See Am. Short Form Compl. [ECF No. 12] ¶ 13. Regardless, in her Response, the
plaintiff expressly relinquishes all claims arising under the Tennessee Consumer Protection Act (“TCPA”). Resp.
Mem. Opp. Mot. Summ. J. 13 [ECF No. 57]. Thus, summary judgment is granted to the extent that the plaintiff intends
to pursue any claims stemming from the Tennessee Consumer Protection Act.

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