Terrell v. C. R. Bard, Inc.
Filing
87
MEMORANDUM OPINION AND ORDER The 26 MOTION by C. R. Bard, Inc. for Partial Summary Judgment on Plaintiffs' Punitive Damages Claims is GRANTED in part and DENIED in part, and 28 MOTION by C. R. Bard, Inc. for Summary Judgment Against Plaintiff is DENIED, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 5/26/2017. (cc: counsel of record; any unrepresented party) (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
LINDA TERRELL,
Plaintiff,
v.
Civil Action No. 2:13-cv-16833
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. Terrell’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).
2
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, Illinois. See Sanchez v.
Bos. Sci.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.”).
Illinois has adopted the most-significant-relationship test as enumerated in
Restatement (Second) of Conflict of Laws. See Townsend v. Sears, Roebuck & Co.,
879 N.E.2d 893, 901 (Ill. 2007); Gregory v. Beazer E., 892 N.E.2d 563, 578 (Ill. 2008).
Under that test, courts should consider the following factors: (1) the place where the
injury occurred, (2) the place where the conduct causing the injury occurred, (3) the
domicile, residence, nationality, place of incorporation and business of the parties,
and (4) the place where the relationship, if any, between the parties is centered. See
Townsend, 879 N.E.2d at 901 (citing Restatement (Second) of Conflict of Laws §
145(2), at 414 (1971)). Here, Ms. Terrell’s implantation occurred in Illinois and any
alleged injuries occurred in Illinois. Therefore, I apply Illinois’s substantive law to
the plaintiff’s claims in this case.
III.
Discussion
a. Bard’s Motion for Summary Judgment [ECF No. 28]
Bard’s Motion for Summary Judgment [ECF No. 28] is GRANTED in part as
3
to the following conceded claims: manufacturing defect and breach of warranty
(express and implied).
For reasons appearing to the court, Bard’s Motion for Summary Judgment
[ECF No. 28] is also GRANTED in part as to negligent inspection, packaging,
marketing, and selling. Under Illinois law, “[a] product liability action asserting a
claim based on negligence . . . falls within the framework of common law negligence.”
Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 263 (Ill. 2007). “[A] plaintiff must
establish the existence of a duty of care owed by the defendant, a breach of that duty,
an injury proximately caused by that breach, and damage.” Id.
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 alleged negligent inspection, marketing, labeling,
packaging, and selling of the Align 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
out claims for negligent failure to warn and negligent design defect. The other
negligence allegations posit that Bard was “negligent . . . in designing,
4
manufacturing, marketing, labeling, packaging, and selling” the product. Master
Compl. ¶ 64, No. 2:10-md-2187; see also Compl. ¶ 6(a) (“[Bard] failed to use
reasonable care in designing, manufacturing, marketing, labeling, packaging, and
selling the product . . . .”) . Thus, the plaintiff’s concerns that Bard is misconstruing
the plaintiff’s negligence claim are 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 injuries in their “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. 26]
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.
5
26] is DENIED.
IV.
Conclusion
The court ORDERS that:
•
Bard’s Motion for Summary Judgment [ECF No. 28] is GRANTED in
part and DENIED in part;
•
Bard’s Motion for Partial Summary Judgment [ECF No. 26] is
DENIED;
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:
6
May 26, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?