Garcia v. C. R. Bard, Inc.

Filing 79

MEMORANDUM OPINION AND ORDER The 27 MOTION by C. R. Bard, Inc. for Partial Summary Judgment on Plaintiffs' Punitive Damages Claims is DENIED, and 41 MOTION by C. R. Bard, Inc. for Summary Judgment Against Plaintiff is GRANTED in part and DENIED in part, 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

MARY LOU GARCIA,
Plaintiff,
v.

Civil Action No. 2:13-cv-28067

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. Garcia’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
Despite being given a chance to do so, the plaintiff failed to respond to Bard’s

Motions, and the court, accordingly, considers the Motions unopposed. 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 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
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
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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).
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, Texas. 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.”).
These principles compel application of Texas law. In tort actions, Texas
adheres to the Restatement (Second) of Conflict of Laws (Am. Law Inst. 1971).
Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex. 1979). Under section 145 of the
Restatement, the court must apply the law of the state with the most “significant
relationship to the occurrence and the parties.” Here, the plaintiff resides in Texas,
and her implantation surgery occurred in Texas. Texas has a strong interest in
resolving tort actions brought by one of its citizens for injuries arising from conduct
alleged to have occurred within its territorial jurisdiction. Thus, I will apply Texas
substantive law to this case.
III.

Discussion

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a. Bard’s Motion for Summary Judgment [ECF No. 41]
The plaintiff did not respond to Bard’s Motion for Summary Judgment. Bard’s
Motion for Summary Judgment [ECF No. 41] is GRANTED in part as to the following
claims: manufacturing defect, breach of warranty (express and implied), and
negligent inspection, marketing, packaging, and selling. Based on the uncontroverted
facts in the motion, Bard has shown that it is entitled to judgment as a matter of law
on these claims.
After considering Bard’s proffered arguments and evidence, I FIND that Bard
has not shown that it is entitled to judgment as a matter of law on the 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. 27]
The plaintiff also did not respond to Bard’s Motion for Partial Summary
Judgment [ECF No. 27]. For reasons appearing to the court, the Motion for Partial
Summary Judgment [ECF No. 27] is DENIED.
IV.

Conclusion
The court ORDERS that:
•

Bard’s Motion for Summary Judgment [ECF No. 41] is GRANTED in
part and DENIED in part;

•

Bard’s Motion for Partial Summary Judgment [ECF No. 27] is
DENIED;

The court DIRECTS the Clerk to send a copy of this Order to counsel of record

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and any unrepresented party.
ENTER:

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May 26, 2017