Branch v. C. R. Bard, Inc.
Filing
206
MEMORANDUM OPINION AND ORDER The 59 Motion for Summary Judgment is GRANTED in part and DENIED in part; the 57 Motion for Partial Summary Judgment is DENIED; and the plaintiff's 173 Motion to Strike is DENIED as moot. Signed by Judge Joseph R. Goodwin on 3/21/2017. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
BARBARA BRANCH,
Plaintiff,
v.
Civil Action No. 2:13-cv-13835
C. R. BARD, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court are all remaining pretrial motions. All are ripe for
adjudication.
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 58,000 cases currently pending, approximately 7,000 of
which are in the Bard MDL, MDL 2187. In an effort to efficiently and effectively
manage this 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 (“PTO”) # 102, No. 2:10-md-2187 [ECF No. 729]. This selection
process was completed twice, creating two waves of 100 cases, Wave 1 and Wave 2.
Thereafter, I entered orders on subsequent waves. Ms. Branch’s case was selected as
a Wave 1 case by the plaintiffs. PTO # 118, No. 2:10-md-2187 [ECF No. 841].
II.
Legal Standards
a. Summary Judgment
To obtain summary judgment, “the movant must show that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In turn, to avoid summary judgment, the
nonmovant must offer some “concrete evidence from which a reasonable juror could
return a verdict” in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986).
b. Choice of Law
Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in
MDL cases. To determine the applicable state law for a dispositive motion, the court
generally refers to the choice-of-law rules of the jurisdiction where the plaintiff first
filed her claim. See In re Air Disaster at Ramstein Air Base, Ger., 81 F.3d 570, 576
(5th Cir. 1996); In re Air Crash Disaster Near Chi., Ill., 644 F.2d 594, 610 (7th Cir.
1981); In re Digitek Prods. Liab. Litig., MDL No. 2:08-md-01968, 2010 WL 2102330,
at *7 (S.D. W. Va. May 25, 2010).
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If a plaintiff files her claim directly into the MDL in the Southern District of
West Virginia, as the plaintiff did here, I consult the choice-of-law rules of the state
in which the implantation surgery took place—in this case, Georgia. See Sanchez v.
Boston Scientific Corp., No. 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, 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.”).
The parties agree, as does this court, that these principles compel application
of Georgia law. Under Georgia law, tort cases are “governed by the rule of lex loci
delicti, which requires application of the substantive law of the place where the tort
or wrong occurred.” Carroll Fullmer Logistics Corp. v. Hines, 710 S.E.2d 888, 890 (Ga.
Ct. App. 2011) (citing Dowis v. Mud Slingers, Inc., 621 S.E.2d 413, 419 (Ga. 2005)).
Here, the alleged wrong occurred in Georgia, where Ms. Branch was implanted with
the allegedly defective device. Thus, I apply Georgia’s substantive law to the claims
in this case.
III.
Discussion
a. Bard’s Motion for Summary Judgment [ECF No. 59]
Bard’s Motion for Summary Judgment [ECF No. 59] is GRANTED in part as
to the following conceded claims: manufacturing defect and breach of warranty.
For the following reasons, Bard’s Motion for Summary Judgment [ECF No. 39]
is also GRANTED in part as to the following claims: negligent inspection, marketing,
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labeling, packaging, and selling. “In Georgia, the essential elements of a cause of
action for negligence are: (1) a legal duty; (2) a breach of this duty; (3) an injury; and
(4) a causal connection between the breach and the injury.” Vaughan v. Glymph, 526
S.E.2d 357, 359 (Ga. App. Ct. 1999).
Bard contends that the plaintiff’s claims for negligent inspection, packaging,
marketing, and selling of the product fail for lack of evidence. The plaintiff argues
that Bard misconstrues the nature of her negligence argument, and that her
allegations regarding the inspection, marketing, labeling, packaging, and selling of
the product comprise part of her general negligence claim, rather than distinct
theories of recovery. In short, the plaintiff asserts that Bard failed to adequately study
or test its mesh products to determine if the products were adequately safe.
A review of the plaintiff ’s Count I in the Master Complaint, Master Compl. ¶¶
62–67, No. 2:10-md-2187 [ECF No. 199], reveals that the plaintiff asserted three
distinct negligence theories under “Count I.” The bulk of the Count I allegations make
claims for negligent failure to warn and negligent design defect. The other negligence
allegations posit that Bard was “negligent . . . in designing, manufacturing,
marketing, labeling, packaging, and selling” the product. Id. at ¶ 64. Thus, the
plaintiff ’s concern that Bard is misconstruing the plaintiff ’s negligence claim is
meritless; Bard simply chose to address the plaintiff ’s different theories of negligence
separately. However, apart from reciting allegations that form the plaintiff ’s failure
to warn and design defect claims, the plaintiff does not offer sufficient support to
create a genuine dispute that Bard breached a legal duty that caused the plaintiff ’s
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injuries in its inspection, marketing, labeling, packaging, or selling of the product.
Accordingly, Bard’s Motion on these points is GRANTED.
After considering the parties’ proffered arguments and evidence, I FIND that
genuine disputes of material fact exist regarding the plaintiff ’s remaining claims.
Accordingly, to the extent Bard’s Motion challenges any other claims, the Motion is
DENIED.
b. Bard’s Motion for Partial Summary Judgment [ECF No. 57]
The question of whether a plaintiff is entitled to punitive damages often
involves an interlocking web of factual determinations respecting the defendant’s
conduct. The evidentiary record is frequently muddled enough on the point that
genuine issues of material fact remain. That is the case here. Consequently, Bard is
not, at least at this stage of the case, entitled to judgment as a matter of law on the
punitive damages claim. Thus, the Motion for Partial Summary Judgment [ECF No.
57] is DENIED.
c. The plaintiff’s Motion to Strike [ECF No. 173]
For reasons appearing to the court, the plaintiff’s Motion to Strike [ECF No.
173] is DENIED as moot.
IV.
Conclusion
The court ORDERS that:
•
Bard’s Motion for Summary Judgment [ECF No. 59] is
GRANTED in part and DENIED in part;
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•
Bard’s Motion for Partial Summary Judgment [ECF No. 57] is
DENIED; and
•
The plaintiff’s Motion to Strike [ECF No. 173] is DENIED as
moot.
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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March 21, 2017
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