Bennett et al v. Boston Scientific Corporation

Filing 114

MEMORANDUM OPINION AND ORDER (Defendant's Motion for Partial Summary Judgment) denying 61 MOTION by Boston Scientific Corporation for Partial Summary Judgment on Punitive Damages Claim, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 4/28/2015. (cc: counsel of record; any unrepresented party) (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

CONNIE BENNETT & DONALD BENNETT,
Plaintiffs,
v.

Civil Action No. 2:13-cv-06641

BOSTON SCIENTIFIC CORP.,
Defendant.

MEMORANDUM OPINION AND ORDER
(Defendant’s Motion for Partial Summary Judgment)
Pending before the court is Defendant Boston Scientific Corp.’s (“BSC”) Motion for
Partial Summary Judgment on Plaintiff Connie Bennett’s Punitive Damages Claim and
Memorandum in Support (“Motion”) [Docket 61]. As set forth below, BSC’s Motion is
DENIED.
I.

Background
This 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 70,000 cases currently pending, approximately 15,000 of which are in the Boston Scientific
Corp. MDL, MDL 2326. In an effort to efficiently and effectively manage this massive MDL, I
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 Daubert motions and summary
judgment motions, among other things), it can then be promptly transferred or remanded to the

appropriate district for trial. To this end, I ordered the plaintiffs and defendant to each select 50
cases, which would then become part of a “wave” of cases to be prepared for trial and, if
necessary, remanded. (See Pretrial Order # 65, In re Bos. Scientific Corp. Pelvic Repair Sys.
Prods.

Liab.

Litig.,

No.

2:12-md-002326,

entered

Dec.

19,

2013,

available

at

http://www.wvsd.uscourts.gov/MDL/boston/orders.html). This selection process was completed
twice, creating two waves of 100 cases, Wave 1 and Wave 2. The Bennetts’ case was selected as
a Wave 1 case by the plaintiffs.
Plaintiff Connie Bennett was surgically implanted with the Obtryx Transobturator MidUrethral Sling System (the “Obtryx”) on August 15, 2008. (Short Form Compl. [Docket 1] ¶¶ 8,
10). She received the surgery at a hospital in Weston, West Virginia. (Id. ¶ 11). Her implanting
surgeon was Dr. Peter Edgerton. (Id. ¶ 12). Ms. Bennett claims that as a result of implantation of
the Obtryx, she has experienced multiple complications, including “urinary tract infections;
urinary problems; bowel problems; bleeding; dyspareunia; emotional distress; extreme pelvic
abdominal pain and tenderness; back pain and leg pain.” (First Am. Pl. Fact Sheet [Docket 6710], at 6–7). She brings the following claims against BSC: strict liability for manufacturing
defect, failure to warn, and design defect; negligence; breaches of express and implied
warranties; fraudulent concealment; and punitive damages. (Short Form Compl. [Docket 1] ¶
13). Mr. Bennett brings a claim for loss of consortium. (Id.). In the instant motion, BSC moves
for partial summary judgment on the grounds that the plaintiffs’ claim for punitive damages is
“without evidentiary or legal support.” (Def.’s Mot. for Partial Summ. J. on Pl.’s Punitive
Damages Claim & Mem. in Supp. (“Mem. in Supp.”) [Docket 61], at 1).

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II.

Legal Standards
A.

Partial Summary Judgment

A partial summary judgment “is merely a pretrial adjudication that certain issues shall be
deemed established for the trial of the case.” Fed. R. Civ. P. 56 advisory committee’s note. A
motion for partial summary judgment is governed by the same standard applied to consideration
of a full motion for summary judgment. See Pettengill v. United States, 867 F. Supp. 380, 381
(E.D. Va. 1994) (citing Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985)).
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

3

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

Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in MDL cases
such as this. The choice of law for these pretrial motions depends on whether they involve
federal or state law. “When analyzing questions of federal law, the transferee court should apply
the law of the circuit in which it is located. When considering questions of state law, however,
the transferee court must apply the state law that would have applied to the individual cases had
they not been transferred for consolidation.” In re Temporomandibular Joint (TMJ) Implants
Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (internal citations omitted). In cases
based on diversity jurisdiction, the choice-of-law rules to be used are those of the states where
the actions were originally filed. See In re Air Disaster at Ramstein Air Base, Ger., 81 F.3d 570,
576 (5th Cir. 1996) (“Where a transferee court presides over several diversity actions
consolidated under the multidistrict rules, the choice of law rules of each jurisdiction in which
the transferred actions were originally filed must be applied.”); In re Air Crash Disaster Near
Chi., Ill., 644 F.2d 594, 610 (7th Cir. 1981); In re Digitek Prods. Liab. Litig., MDL No. 2:08md-01968, 2010 WL 2102330, at *7 (S.D. W. Va. May 25, 2010).
If a plaintiff files her claim directly into the MDL in the Southern District of West
Virginia, however, as the Bennetts did in this case, I consult the choice-of-law rules of the state
in which the implantation surgery took place. See Sanchez v. Bos. Scientific Corp., 2:12-cv05762, 2014 WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014) (“For cases that originate elsewhere
and are directly filed into the MDL, I 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. Bennett received her implantation surgery in
4

West Virginia. (Short Form Compl. [Docket 1] ¶ 11). Thus, the choice-of-law principles of West
Virginia guide this court’s choice-of-law analysis.
III.

Analysis
The plaintiffs and BSC do not dispute that West Virginia’s choice-of-law principles apply

here. (See Mem. in Supp. [Docket 61], at 9; Pls.’ Resp. in Opp’n to Def.’s Mot. for Partial
Summ. J. on Pls.’ Punitive Damages Claim (“Resp. in Opp’n”) [Docket 79], at 9). BSC,
however, contends that West Virginia’s choice-of-law principles dictate application of
Massachusetts substantive law to the plaintiffs’ punitive damages claims. (See Mem. in Supp.
[Docket 61], at 9–13). By contrast, the plaintiffs maintain that West Virginia law controls this
issue. (See Resp. in Opp’n [Docket 79], at 10–12).
A.

Choice of Law in West Virginia

This situation is very similar, if not nearly identical, to the situation I faced in Hendricks
v. Boston Scientific Corp., 51 F. Supp. 3d 638 (S.D. W. Va. 2014). There, I wrote the following:
I turn first to West Virginia’s choice-of-law principles. With respect to causes of
action sounding in tort, West Virginia follows the traditional rule that the
applicable substantive law is the law of the place of injury. West Virginia ex rel.
Chemtall, Inc. v. Madden, 607 S.E.2d 772, 779–80 (W. Va. 2004); McKinney v.
Fairchild Intern., Inc., 487 S.E.2d 913, 922 (W. Va. 1997) (“Traditionally, West
Virginia courts apply the lex loci delicti choice-of-law rule; that is, the substantive
rights between the parties are determined by the law of the place of injury.”); Paul
v. Nat’l Life, 352 S.E.2d 550, 555, 555 n.13 (W. Va. 1986) (noting that “[l]ex loci
delicti has long been the cornerstone of our conflict of laws doctrine” and
collecting cases).
It is true that on a handful of occasions the Supreme Court of Appeals of West
Virginia has invoked the most-significant-relationship test in the tort context. See,
e.g., Oakes v. Oxygen Therapy Servs., 363 S.E.2d 130, 131 (W. Va. 1987) (noting
that the court has used the most-significant-relationship test to resolve
“particularly thorny conflicts problems”). However, such circumstances have
arisen in “cases involving complex, or unusual, contractual situations and torts
which very existence are dependent upon the brea[d]th and legality of contracts.”
Ball v. Joy Mfg. Co., 755 F. Supp. 1344, 1351 (S.D. W. Va. 1990) (emphasis
added) (citing Lee v. Saliga, 373 S.E.2d 345, 350–52 (W. Va. 1988); Oakes, 363

5

S.E.2d at 131; New v. Tac & C Energy, Inc., 355 S.E.2d 629 (W. Va. 1987);
General Elec. Co. v. Keyser, 275 S.E.2d 289 (W. Va. 1981)).
In Oakes, for example, the complexity that triggered the most-significantrelationship test arose from “the relationship between the Maryland [employment]
contract and appellant’s tort theory.” 363 S.E.2d at 132 (emphases added). The
Oakes court faced a peculiar dilemma. On the one hand, if the court characterized
plaintiff’s claim purely as one of contract, it would likely conclude under West
Virginia’s conflicts principles that Maryland law applied because Maryland was
the place of contracting and the document contained a choice-of-law provision
selecting Maryland law. See id. (“The plaintiff was employed . . . under an
employment contract signed by the parties in Maryland that specified that
Maryland law should apply to all matters arising under the contract.”). On the
other hand, if the court characterized plaintiff’s claim as one of tort, it might
conclude that West Virginia law applied because the plaintiff was physically
present in West Virginia when he was discharged, that is, plaintiff felt his injury
in West Virginia. See id. (noting that the decision to terminate the plaintiff
occurred in Maryland “while [plaintiff] was hospitalized in West Virginia”).
Rather than rigidly apply traditional contract or lex loci delicti choice-of-law
principles, the court reasoned that the facts were “sufficiently complex because of
the relationship between the Maryland contract and appellant’s tort theory that the
Restatement standards,” which include the most-significant-relationship test,
“provide useful guidance.” Id.
Similarly, in Lee v. Saliga, the Supreme Court of Appeals noted that “[t]here is in
any uninsured motorist case a related tort aspect.” 373 S.E.2d 345, 348 (W. Va.
1988). But the court’s invocation of the most-significant-relationship test was not
explicitly premised on the interplay between the tort and contract issues. Instead,
the court reached the narrow conclusion that “where in a suit for the recovery of
uninsured motorist insurance benefits an issue arises which involves insurance
coverage, that issue is to be resolved under conflict of laws principles applicable
to contracts.” 373 S.E.2d 345, 349 (W. Va. 1988) (footnote omitted); id. at 350
(“Having concluded that the issue presented is one of contract, we turn to a
discussion of the appropriate conflicts rule.”). In short, it appears that the
contractual nature of the claim, rather than a finding of a particularly thorny
conflicts problem involving aspects of contract and tort, triggered the mostsignificant-relationship test. The court announced a narrow rule to address the
specific circumstances before it:
[W]e find that the Restatement standard and its commentary
provide useful guidance along with our earlier cases in fashioning
the following rule: The provisions of a motor vehicle liability
policy will ordinarily be construed according to the laws of the
state where the policy was issued and the risk insured was
principally located, unless another state has a more significant
relationship to the transaction and the parties.

6

Id. at 352–53 (footnote omitted).
Here, the defendant, headquartered in Massachusetts, sells products in many
states across the country. The defendant has not contracted with the plaintiffs in
the sense an employer contracts with employees or an insurer contracts with
motorists. In fact, there are no complex or unusual contractual wrinkles between
the defendant and plaintiffs that bear significantly on the underlying productliability claims regarding pelvic mesh. Rather than implicating aspects of tort and
contract, these are “clear-cut cases of physical injury,” to which “the lex loci
delicti rule has generally been applied [in West Virginia].” Oakes, 363 S.E.2d at
131.
Stated simply, the plaintiffs were implanted with and allegedly injured by the
defendant’s product in West Virginia. There is no reason to depart from West
Virginia’s traditional conflicts principles and I FIND that West Virginia law
applies to plaintiffs’ punitive damages claims. Cf. In re C.R. Bard, Inc., MDL No.
2187, 2013 WL 2432871, at *2–3 (S.D. W. Va. June 4, 2013) (“Under Georgia
law, the traditional lex loci delicti rule generally applies to tort actions. . . . With
respect to the Cissons, the surgery to implant Ms. Cisson’s [pelvic mesh] product
was performed in Georgia and any alleged injuries occurred in Georgia.
Accordingly, Georgia law applies to [the punitive damages claim in] the Cisson
case.”). “Certainly, a West Virginia court has an interest in protecting its citizens
from tortious conduct and is not precluded from doing so simply because some of
the tortious conduct occurred in another state.” Boyd v. Goffoli, 608 S.E.2d 169,
179 (W. Va. 2004) (finding constitutional application of West Virginia punitive
damages law when “Pennsylvania scheme” harmed West Virginia residents).
Id. at 641–42.
After reviewing the parties’ briefs, I see no persuasive reason to deviate from my prior
holding. Therefore, I ADOPT my reasoning in Hendricks, and because the alleged injury
occurred in West Virginia, where Ms. Bennett was implanted with the allegedly defective device,
(see Short Form Compl. [Docket 1] ¶¶ 11, 13), I FIND that West Virginia’s substantive law
applies to the plaintiffs’ punitive damages claim.
B.

Standard of Proof for Punitive Damages

In West Virginia, the “law has long required more than a showing of simple negligence to
recover punitive damages.” Bennett v. 3 C Coal Co., 379 S.E.2d 388, 394 (W. Va. 1989).
Punitive damages are appropriate against a defendant “[i]n actions of tort, where gross fraud,

7

malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil
obligations affecting the rights of others appear.” Syl. Pt. 11, Vandevender v. Sheetz, Inc., 490
S.E.2d 678, 682 (W. Va. 1997) (quoting Syl. Pt. 4, Mayer v. Frobe, 22 S.E. 58, 58 (W. Va.
1895)); see also Syl. Pt. 12, Marsch v. Am. Elec. Power Co., 530 S.E.2d 173, 177 (W. Va. 1999)
(noting that punitive damages serve as “punishment for [the defendant’s] wilfulness, wantonness,
malice, or other like aggravation of his wrong to the plaintiff, over and above full compensation
for all injuries directly or indirectly resulting from such wrong” (internal quotation marks and
citations omitted)).
BSC argues that this court should adopt the standard of clear and convincing evidence to
the plaintiffs’ claim of punitive damages rather than the standard of a preponderance of the
evidence because there is no controlling law on the standard of proof. (Mem. in Supp. [Docket
61], at 14–19). I am not convinced.
In Coleman v. Sopher, the Supreme Court of Appeals of West Virginia dealt with the
same argument that BSC is raising:
Sopher urges that, in the context of punitive damages, there must be clear cut and
convincing evidence to support a jury instruction. In support of this contention,
Sopher cites Michael v. Sabado, 192 W.Va. 585, 601, 453 S.E.2d 419, 435
(1994). The portion of Sabado referred to by Sopher contains the Court’s
discussion of two cases cited by the appellant in that case. Justice Cleckley
observed that “the evidence presented was clear cut. The plaintiffs in these two
cases were able to convincingly prove definite misrepresentations by the
respective defendants.” Justice Cleckley’s observations about those two cases are
dicta, and do not establish a new standard requiring clear and convincing evidence
to support jury instructions on punitive damages.
499 S.E.2d 592, 606 n.21 (W. Va. 1997) (emphasis in original). It is clear from this language that
Coleman rejected the argument that West Virginia should adopt the standard of clear and
convincing evidence to prevail on a claim of punitive damages. Furthermore, in Goodwin v.
Thomas, the court quoted a jury instruction using the preponderance-of-the-evidence standard for
8

punitive damages. 403 S.E.2d 13, 16 (W. Va. 1991). Although “the appropriateness of this
instruction was not at issue,” (Mem. in Supp. [Docket 61], at 16), nevertheless, I find it telling
that the court did not say anything to suggest that “clear and convincing evidence” should be the
standard while discussing the sufficiency of the evidence.
In addition, BSC’s argument with respect to Muzelak v. King Chevrolet, Inc., 368 S.E.2d
710 (W. Va. 1988), is unavailing. Although BSC claims that the Supreme Court of Appeals of
West Virginia in Muzelak did not note with any disapproval a jury instruction using the clearand-convincing-evidence standard, (Mem. in Supp. [Docket 61], at 16), the claim itself in
Muzelak required a showing of clear and convincing evidence, see Muzelak, 368 S.E.2d at 714
n.7. It would therefore follow that proving a claim for punitive damages would also require clear
and convincing evidence.
More recently, Justice Ketchum wrote in a concurring opinion that West Virginia’s
punitive damages law is a “confusing hodgepodge” and proposed that the court “should, at least,
modify three elements of our punitive damage law.” Perrine v. E.I. du Pont de Nemours & Co.,
694 S.E.2d 815, 919 (W. Va. 2010) (Ketchum, J., concurring in part and dissenting in part)
(emphasis added); (see Mem. in Supp. [Docket 61], at 16). Justice Ketchum’s statement that the
Supreme Court of Appeals of West Virginia should “modify” the existing punitive damages law
to adopt “clear and convincing evidence” as the standard implies that the current standard is
otherwise—which is to say “preponderance of the evidence.”
Given the great weight of prior West Virginia decisions using the standard of
“preponderance of the evidence,” and without sure indication from the Supreme Court of

9

Appeals of West Virginia to the contrary,1 I FIND that the proper standard of proof for punitive
damages in West Virginia is proof by a preponderance of the evidence.
C.

Punitive Damages in West Virginia

The plaintiffs assert that BSC engaged in wanton, willful, or reckless conduct with regard
to the claims alleged by plaintiffs related to the Obtryx. (See Resp. in Opp’n [Docket 79], at 15–
17). The question on partial summary judgment, then, is whether the plaintiffs’ allegations raise
any genuine factual disputes. I recently resolved a similar issue under West Virginia law in favor
of the plaintiffs. See Hendricks v. Bos. Scientific Corp., 51 F. Supp. 3d 638 (S.D. W. Va. 2014)
(concluding on similar evidence that “there is a genuine dispute of material fact whether BSC’s
actions with respect to the Obtryx device warrant an award of punitive damages”). My analysis
in Hendricks similarly applies to the present claims regarding the Obtryx device.
Here, the plaintiffs argue that BSC was aware that the polypropylene used to construct
the Obtryx device was not intended to be implanted in the human body. (See Resp. in Opp’n
[Docket 79], at 16). The plaintiffs point to a material data safety sheet (“MSDS”) issued by
BSC’s supplier of polypropylene that warned BSC not to implant the material in the human
body. The Obtryx device is constructed using a polypropylene resin supplied by Chevron Phillips
Chemical Company LP. Chevron Phillips authored the MSDS that accompanied the resin. The
MSDS included the following warning:
MEDICAL APPLICATION CAUTION: Do not use this Chevron Phillips
Chemical Company LP material in medical applications involving permanent

1

BSC notes one case where a Kanawha County Circuit Court judge “rejected proposed instructions submitted by
both parties that identified the standard of proof as a ‘preponderance of the evidence.’ The circuit court opted for an
instruction using the ‘clear and convincing’ standard, stating, ‘I just think that the time has come when [clear and
convincing] will be the standard.’” Accord v. Phillip Morris USA, Inc. (In re Tobacco Litig.), No. 13-1204, 2014
WL 5545853, at *5 n.14 (W. Va. Nov. 3, 2014); (see Mem. in Supp. [Docket 61], at 16–17). The Supreme Court of
Appeals sidestepped the issue, writing, “We can easily dispose of petitioners’ third assignment of error without
delving into the issue of the proper standard of proof for a punitive damages instruction because any potential error
was clearly harmless.” Accord, 2014 WL 5545853, at *5.

10

implantation in the human body or permanent contact with internal body fluids or
tissues.
(MSDS [Docket 79-5], at 1). Despite this warning, BSC used Chevron Phillips polypropylene in
its Obtryx devices.
Additionally, the plaintiffs argue that BSC knew it needed to conduct long-term safety
studies of the polypropylene material in the Obtryx device. (Resp. in Opp’n [Docket 79], at 16–
17). The plaintiffs point to the written agreement between BSC and its polypropylene supplier
(“the Agreement”). The Agreement cautioned BSC to make its own determination of the safety
and suitability of the polypropylene material in BSC’s products. The agreement stated:
BOSTON SCIENTIFIC IS ADVISED AND CAUTIONED TO MAKE ITS
OWN DETERMINATION AND ASSESSMENT OF THE SAFETY AND
SUITABILITY OF THE . . . POLYPROPYLENE PRODUCT FOR USE BY,
FOR OR ON BEHALF OF BOSTON SCIENTIFIC. IT IS THE ULTIMATE
RESPONSIBILITY OF BOSTON SCIENTIFIC TO ENSURE THAT
THE . . . POLYPROPYLENE PRODUCT IS SUITED TO BOSTON
SCIENTIFIC’S SPECIFIC APPLICATION.
(Agreement [Docket 79-7], at PageID #8665–66).
Despite the MSDS warning and the admonition from BSC’s polypropylene supplier to
conduct its own tests, an internal BSC document indicated that BSC sponsored no clinical
studies on the Obtryx device. (See Obtryx Clinical Risk/Benefit Analysis [Docket 79-1], at
PageID #8617).
In light of this evidence, I FIND that there is a genuine dispute of material fact whether
BSC’s actions with respect to the Obtryx device warrant an award of punitive damages. A
reasonable jury could find that by ignoring a warning on the MSDS and failing to conduct
clinical testing, BSC’s actions were wanton, willful, or reckless under West Virginia punitive
damages law. Cf. Davis v. Celotex Corp., 420 S.E.2d 557, 561 (W. Va. 1992) (“[W]e conclude
that when an asbestos manufacturer has actual or constructive knowledge of the severe health
11

hazards caused by a product and continues to manufacture and distribute that product, the
manufacturer may be found liable for punitive damages to those injured by the product.”).
Accordingly, BSC’s Motion is DENIED.
IV.

Conclusion
For the reasons discussed above, it is ORDERED that BSC’s Motion [Docket 61] be

DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.

ENTERED:

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April 28, 2015