Allmon v. Ethicon, Inc. et al
Filing
61
MEMORANDUM OPINION AND ORDER (Defendants' Motion for Partial Summary Judgment) The 49 MOTION by Ethicon, Inc., Johnson & Johnson for Partial Summary Judgment is GRANTED in part and DENIED in part. The court GRANTS Ethicon's Motion with regard to the following claim: manufacturing defect. Ethicon's Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 6/29/2017. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
MARY ALLMON,
Plaintiff,
v.
CIVIL ACTION NO. 2:12-cv-02999
ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Partial Summary Judgment)
Pending before the court is the Motion for Partial Summary Judgment
[ECF No. 49] 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 mesh
products manufactured by Ethicon, Prolift +M (“Prolift”) and Tension-free Vaginal
Tape-Obturator (“TVT-O”), on September 15, 2009, at University of Tennessee
Memorial Hospital, Knoxville, TN, by Dr. Robert F. Elder. Second Am. Short Form
Compl. [ECF No. 38] ¶¶ 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
favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
2
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 that Tennessee choice-of-law principles apply to this case
and that these principles compel the application of Tennessee law to the plaintiff’s
substantive claims. To determine the applicable state law for a dispositive motion, I
generally refer to the choice-of-law rules of the 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
3
of West Virginia, however, I consult the choice-of-law rules of the state in which the
plaintiff was implanted with the product. See Sanchez v. Bos. Sci. Corp., 2:12-cv05762, 2014 WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014). Here, the plaintiff filed her
initial complaint directly in the Southern District of West Virginia, Compl.
[ECF No. 1], and her implant surgery took place in Tennessee. Thus, the choice-oflaw principles of Tennessee guide this court’s choice-of-law analysis.
Tennessee law employs a “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 considers relevant contacts including: “(a)
the place where the injury occurred, (b) the place where the conduct causing the
injury occurred, (c) the domicil[], 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. (quoting Restatement (Second) of Conflict of
Laws § 145 (Am. Law Inst. 1971)). Here, the plaintiff is a resident of Tennessee, was
implanted with the products at issue in Tennessee, and the 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 partial summary judgment because the
4
plaintiff’s claims are without evidentiary or legal support.
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, the court ORDERS that Ethicon’s Motion for
Partial Summary Judgment [ECF No. 49] is GRANTED in part and DENIED in part.
The court GRANTS Ethicon’s Motion 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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June 29, 2017
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