Blackwell et al v. Johnson & Johnson et al
Filing
53
MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) granting 48 MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment on All Claims, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 7/6/2017. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
LYDIA BLACKWELL, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 2:12-cv-03155
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. 48]
filed by defendants Ethicon, Inc. and Johnson & Johnson (collectively, “Ethicon”). The
plaintiffs have not responded, and this motion is ripe. As set forth below, Ethicon’s
Motion is GRANTED in its entirety and the plaintiffs’ claims against Ethicon are
DISMISSED with prejudice.
I.
Background
This action involves Louisiana co-plaintiffs, one of whom was implanted with
Tension-free Vaginal Tape (“TVT”), a mesh product manufactured by Ethicon. Am.
Short Form Compl. [ECF No. 18] ¶¶ 1–9. 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 plaintiffs’ 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).
Despite being given a chance to do so, the plaintiffs failed to respond, and the
court, accordingly, considers the Motion for Summary Judgment as an unopposed
Motion. A court does not, however, automatically grant an unopposed motion for
summary judgment. See Fed. R. Civ. P. 56(e). The Fourth Circuit has directed:
[I]n considering a motion for summary judgment, the district court “must
review the motion, even if unopposed, and determine from what it has before
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it whether the moving party is entitled to summary judgment as a matter of
law.” Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir.1993) (emphasis
added). “Although the failure of a party to respond to a summary judgment
motion may leave uncontroverted those facts established by the motion,” the
district court must still proceed with the facts it has before it and determine
whether the moving party is entitled to judgment as a matter of law based on
those uncontroverted facts. Id.
Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 409 n.8 (4th Cir. 2010).
B. Choice of Law
If a plaintiff files her claim directly into the MDL in the Southern District of West
Virginia, 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 court will follow the betterreasoned 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. Blackwell underwent TVT implantation surgery in Louisiana. Thus, the choiceof-law principles of Louisiana guide the court’s choice-of-law analysis.
Under Louisiana law, a tort claim “is governed by the law of the state whose
policies would be most seriously impaired if its laws were not applied” to the claim.
La. Civ. Code Ann. art. 3542 (listing factors such as place of injury, residence of
parties, and the state in which the relationship between parties was centered to
determine the appropriate state law). The plaintiffs are residents of Louisiana, Ms.
Blackwell was implanted with the product at issue in Louisiana, and her alleged
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injuries and follow-up care occurred in Louisiana. Accordingly, I will apply
Louisiana's substantive law to this case.
III.
Analysis
Ethicon argues it is entitled to summary judgment because the plaintiffs’
claims are without evidentiary or legal support.
A. Claims Abrogated by the Louisiana Products Liability Act
The Louisiana Products Liability Act (“LPLA”) “establishes the exclusive
theories of liability for manufacturers for damage caused by their products. A
claimant may not recover from a manufacturer for damage caused by a product on
the basis of any theory of liability that is not set forth in this Chapter.” La. Rev. Stat.
§ 9:2800.52; see Jefferson v. Lead Industries Ass’n, Inc., 106 F.3d 1245, 1248 (5th Cir.
1997) (“Louisiana law eschews all theories of recovery . . . except those explicitly set
forth in the LPLA.”) (applying Louisiana law). Following are claims that fall outside
of the LPLA and have been abrogated by courts applying Louisiana law: Count I
(negligence), Count VI (common law fraud), Count VII (fraudulent concealment),
Count VIII (constructive fraud), Count IX (negligent misrepresentation), Count X
(negligent infliction of emotional distress), Count XII (breach of implied warranty),
Count XIII (violation of consumer protection laws), Count XIV (gross negligence), and
Count XV (unjust enrichment). Accordingly, Ethicon’s Motion regarding these claims
is GRANTED.
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B. Defective Product
Louisiana does not recognize a claim for “defective product.” Instead, state law
recognizes four ways to show a product is defective: it must be unreasonably
dangerous (1) in construction or composition; (2) in design; (3) because of inadequate
warning; or (4) because of nonconformity to an express warranty. See La. Rev. Stat.
§ 9:2800.54(B). Accordingly, Ethicon’s Motion as to Count IV (strict liability—
defective product) is GRANTED.
C. Failure to Prove Causation on LPLA Claims
“Louisiana imposes liability on the manufacturer of an unreasonably
dangerous product when the characteristic of that product, which renders it
unreasonably dangerous, proximately causes the complained of injuries.” Wheat v.
Pfizer, Inc., 31 F.3d 340, 342 (5th Cir. 1994) (applying Louisiana law); see La. Rev.
Stat. § 9:2800.54(A). The burden is on the plaintiffs to prove causation through expert
medical testimony. Wheat, 31 F.3d at 342; see Johnson v. E.I. DuPont deNemours &
Co., 7 So. 3d 734, 740 (La. Ct. App. 2009) (“When a conclusion regarding medical
causation is not one within common knowledge, expert medical testimony is required
in a tort action.”). Having failed to designate any general or specific causation experts
in this matter, the plaintiffs have failed to meet their burden of proving that a defect
in Ms. Blackwell’s TVT caused her alleged injuries. Accordingly, Ethicon’s Motion as
to Count II (strict liability – manufacturing defect), Count III (strict liability – failure
to warn), Count V (strict liability – design defect), and Count XI (breach of express
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warranty) is GRANTED.
D. Remaining Claims
Because summary judgment has been granted on all substantive theories of
liability, the plaintiffs’ remaining claims must also be dismissed, as they are either
derivative of the substantive claims or not themselves independent causes of action.
Accordingly, summary judgment as to Count XVI (loss of consortium), Count XVII
(punitive damages), and Count XVIII (discovery rule and tolling) is GRANTED.
IV.
Conclusion
For the reasons discussed above, it is ORDERED that Ethicon’s Motion for
Summary Judgment [ECF No. 48] is GRANTED in its entirety and the plaintiffs’
claims against Ethicon are DISMISSED with prejudice.
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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July 6, 2017
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