Ward v. Cook Group, Inc. et al
MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) the 49 MOTION by Cook Biotech, Inc., Cook Incorporated, Cook Medical, Inc. for Summary Judgment is GRANTED and the plaintiff's case be DISMISSED with prejudice. Signed by Judge Joseph R. Goodwin on 6/4/2015. (cc: attys; any unrepresented party) (skh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLOTTE DEWENE WARD,
Civil Action No. 2:13-cv-15879
COOK INCORPORATED, et al.,
MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Summary Judgment)
Pending before the court is Defendants Cook Incorporated, Cook Medical, Inc., and Cook
Biotech, Inc.’s (collectively “Cook”) Motion for Summary Judgment (“Motion”) [Docket 49]. As
set forth below, Cook’s Motion is GRANTED.
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
approximately 70,000 cases currently pending, nearly 400 of which are in the Cook MDL, MDL
2440. In an effort to efficiently and effectively manage this MDL, I ordered the parties to identify
fifteen cases per side, for a total of thirty cases, to be included in a “discovery pool” wherein certain
case-specific discovery would be conducted. (See Pretrial Order # 19, In re Cook Med., Inc., Pelvic
Repair Sys. Prods. Liab. Litig., No. 2:13-md-02440, entered Dec. 19, 2013, available at
http://www.wvsd.uscourts.gov/MDL/2440/index.html). From the group of thirty discovery pool
cases, I picked four bellwether cases. Well before trial, all four bellwether cases were dismissed
by the plaintiffs with prejudice. In addition, only six of the original thirty discovery pool cases
remain pending. Ms. Ward’s case is one of the remaining discovery pool cases.
Plaintiff Charlotte Dewene Ward was surgically implanted with the Stratasis Urethral Sling
(the “Stratasis”) on April 3, 2009. (Am. Short Form Compl. [Docket 33], ¶¶ 8, 10). She received
the surgery at a hospital in Chattanooga, Tennessee. (Id. ¶ 11). Her surgery was performed by Dr.
John M. Breen. (Id. ¶ 12). The plaintiff brings the following claims against Cook: negligence; strict
liability for manufacturing defect, failure to warn, defective product, and design defect; common
law fraud; fraudulent concealment; constructive fraud; negligent misrepresentation; breaches of
express and implied warranties; violation of consumer protection laws; gross negligence; unjust
enrichment; and punitive damages. (Id. ¶ 13).
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 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).
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. 2:08-md-01968, 2010 WL 2102330, at *7
(S.D. W. Va. May 25, 2010).
Here, the action was originally filed in Tennessee. (Compl. [Docket 1]). Thus, the choiceof-law principles of Tennessee guide this court’s choice-of-law analysis.
These principles compel application of Tennessee law. “In an action for a personal injury,
the local law of the state where the injury occurred determines the rights and liabilities of the
parties, unless, with respect to the particular issue, some other state has a more significant
relationship . . . .” Hataway v. McKinley, 830 S.W.2d 53, 60 (Tenn. 1992) (quoting Restatement
(Second) of Conflict of Laws (“Restatement”) § 146); see also id. at 59 (quoting Restatement
§ 145) (listing factors to consider when determining which state has the most significant
relationship to a dispute).
Here, the plaintiff is a Tennessee resident. (Am. Short Form Compl. [Docket 33] ¶ 4). In
addition, she was implanted with the device and allegedly suffered injury in Tennessee. (Id. ¶¶ 11,
13). Accordingly, Tennessee has the most significant relationship of any state to the occurrence
alleged in this lawsuit and to the parties. Thus, I apply Tennessee’s substantive law to this case.
Generally, under Tennessee law, medical causation must be established by testimony from
a medical expert. Thomas v. Aetna Life & Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991); accord
Miller v. Choo Choo Partners, L.P., 73 S.W.3d 897, 901 (Tenn. Ct. App. 2001). Thus, the plaintiff
here must offer a medical expert, such as her treating physicians, to testify on causation. The
plaintiff states that she “intends to call her treating physicians at the trial of this matter.” (Pl.’s
Resp. in Opp’n to Defs.’ Mot. for Summ. J. (“Resp.”) [Docket 51], at 5). However, there is no
evidence in the summary judgment record before me at this moment—no depositions, affidavits,
reports, or anything else—regarding specific causation.1 Furthermore, even after reviewing the
deposition excerpts of Dr. Breen, the plaintiff’s implanting physician, which is attached to Cook’s
I note that the plaintiff has placed several expert reports on general causation in the record; they do not appear to
contain any discussion on specific causation. Furthermore, these expert reports specifically identify ten discovery pool
cases to which they relate and do not mention the plaintiff’s case.
Opposition to the plaintiff’s counsel’s Motion to Withdraw as Counsel, there is no evidence
suggesting the Stratasis caused the plaintiff’s injuries. (See Breen Dep. [Docket 45-1]). Without
evidence of specific causation, the plaintiff cannot show that she has suffered an injury, which is
an element of every claim brought by the plaintiff. Therefore, Cook’s Motion on all of the
plaintiff’s claims is GRANTED.
For the reasons discussed above, it is ORDERED that Cook’s Motion [Docket 49] be
GRANTED and that the plaintiff’s case be DISMISSED with prejudice.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
June 4, 2015
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