Piper v. C. R. Bard, Inc.

Filing 54

MEMORANDUM OPINION AND ORDER (Defendant's Motion for Summary Judgement) The 27 MOTION by C. R. Bard, Inc. for Partial Summary Judgment is GRANTED in part and DENIED in part; Bard's Motion is GRANTED with regard to the following claims: C ount I in part (to the extent it alleges Negligent Manufacturing Defect)' Count III (Strict Liability - Manufacturing Defect); Count V (Breach of Express Warranty); and Count IV (Breach of Implied Warranty). Bard's Motion in DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 2/2/2018. (cc: counsel of record; any unrepresented party) (mek)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CONNIE PIPER,
Plaintiff,
v.

CIVIL ACTION NO. 2:16-cv-11811

C. R. BARD, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
(Defendant’s Motion for Summary Judgment)
Pending before the court is the Motion for Partial Summary Judgment
(“Motion”) [ECF No. 27], filed by defendant C. R. Bard, Inc. (“Bard”) on September
22, 2017. Plaintiff Connie Piper filed a Response to the Motion on October 5, 2017
[ECF No. 30], and on October 13, 2017, Bard filed a Reply [ECF No. 31]. As set forth
below, the Motion is GRANTED in part and DENIED in part.
I.

Background
This action involves a Florida plaintiff implanted with the Align Urethral

Support System (“Align”), a mesh product manufactured by Bard, on December 31,
2007, in Gainesville, Florida. Short Form Compl. [ECF No. 1] ¶¶ 1–12. This case
resides in one of seven MDLs assigned to me by the Judicial Panel on Multidistrict
Litigation (“MDL”) 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 24,000 cases currently pending, approximately 3,000 of which
are in the C. R. Bard, Inc. MDL, MDL No. 2187.
In an effort to manage the massive Bard MDL efficiently and effectively, the
court decided to conduct pretrial discovery and motions practice on an individualized
basis. To this end, I ordered the plaintiffs and defendants to submit a joint list of
remaining cases in the Bard MDL, MDL 2187, with claims against Bard and other
defendants where counsel has at least 20 cases in the Bard MDL. The list included
nearly 3,000 cases. From these cases, I selected 332 cases to become part of a “wave”
of cases to be prepared for trial and, if necessary, remanded. See Pretrial Order No.
244, In re C. R. Bard, Inc. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:10-md-02187,
March 3, 2017, https://www.wvsd.uscourts.gov/MDL/2187/orders.html. Upon the
creation of a wave, a docket control order subjects each active case in the wave to the
same scheduling deadlines, rules regarding motion practice, and limitations on
discovery. I selected the instant civil action as a Wave 5 case.
II.

Legal Standards
Summary Judgment
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

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favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587–88 (1986).
The “party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
To discharge this burden, the moving party may produce an affidavit to demonstrate
the absence of a genuine issue of material fact. See id. The moving party, however, is
not required to do so and may discharge this burden “by ‘showing’—that
is, pointing out to the district court—that there is an absence of evidence to support
the nonmoving party’s case.” Id. at 325; see also Pumphrey v. C.R. Bard, Inc., 906 F.
Supp. 334, 336 (N.D. W. Va. 1995). If the moving party sufficiently points out to the
court those portions of the record that show that there is an absence of evidence to
support the nonmoving party’s case, the burden shifts to the nonmoving party to come
forward with record evidence establishing a genuine issue of material fact. Pollard v.

United States, 166 F. App'x 674, 678 (4th Cir. 2006) (citing Celotex, Corp., 477 U.S.
at 325).
Should the burden shift, the nonmoving party 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. 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. Id.

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at 252. Likewise, conclusory allegations or unsupported speculations, 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). Summary judgment is therefore appropriate when, after
adequate time for discovery, the moving party first discharges the initial burden and
then the nonmoving party does not make a showing sufficient to establish a genuine
issue of material fact. Celotex Corp., 477 U.S. at 322–23.
Choice of Law
The plaintiff does not dispute Bard’s contention that Florida choice-of-law
principles apply to this case and that these principles compel the application of
Florida substantive law to the plaintiff’s claims.
Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in
MDL cases. The choice of law for these pretrial motions depends on whether they
concern 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) (citations omitted). If a plaintiff files her claim directly into the
MDL in the Southern District of West Virginia, as the plaintiff did in this case, the
court consults the choice-of-law rules of the state where the plaintiff was implanted
with the product. See Sanchez v. Boston Scientific Corp., 2:12-cv-05762, 2014 WL
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202787, at *4 (S.D. W. Va. Jan. 17, 2014) (“For cases that originate elsewhere and are
directly filed into the MDL, the court 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 plaintiff
underwent the implantation surgery in Florida. Thus, Florida’s choice-of-law
principles guide the court’s choice-of-law analysis.
Florida courts employ the “significant relationship test” to determine which
state’s substantive law to apply in a tort action. Bishop v. Florida Specialty Paint Co.,
389 So. 2d 999, 1001 (Fla. 1980). “The state where the injury occurred would, under
most circumstances, be the decisive consideration in determining the applicable
choice of law.” Id.
[I]n a conflict-of-laws situation, consideration should be
given to four main factors: 1) “the place where the injury
occurred,” 2) “the place where the conduct causing the
injury occurred,” 3) “the domicil[e], residence, nationality,
place of incorporation and place of business of the parties,”
and 4) “the place where the relationship, if any, between
the parties is centered.”

Connell v. Riggins, 944 So. 2d 1174, 1177 (Fla. Dist. Ct. App. 2006) (quoting Bishop,
389 So. 2d at 1001).
Here, the plaintiff resides in Florida, she was implanted with the products at
issue in Florida, and her alleged injuries and follow-up care occurred in Florida.
Accordingly, I FIND that Florida has the most significant relationship, and I apply
Florida’s substantive law to this case.

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III.

Analysis
Bard argues it is entitled to summary judgment on the plaintiff’s

manufacturing defect claims (strict liability and negligence), failure to warn claims
(strict liability and negligence), breach of express and implied warranty claims, and
her negligence claims to the extent she alleges negligent “marketing,” “inspection,”
“packaging,” and “selling” because these claims are without evidentiary or legal
support.
A. Conceded Claims
The plaintiff concedes the following claims: Count I in part (to the extent it
alleges Negligent Manufacturing Defect); Count III (Strict Liability - Manufacturing
Defect); Count V (Breach of Express Warranty); and Count VI (Breach of Implied
Warranty). Accordingly, Bard’s Motion regarding these counts is GRANTED.
Negligence
Bard contends that the plaintiff’s claims for negligent marketing, inspection,
packaging and selling of the products fail for lack of evidence since the plaintiff has
not produced any expert evidence with respect to this negligence claim. The plaintiff
argues that Bard misconstrues the nature of her negligence claims, 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 the safety of its mesh products, and then failed to provide sufficient
information to physicians and patients regarding associated risks. The plaintiff also

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argues that she is not required to present expert evidence to recover for negligent
marketing, inspection, packaging and selling under Florida law.
A review of the plaintiffs’ 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 use reasonable care in testing and inspecting the
products. The other negligence allegations posit that Bard was negligent in
“designing, manufacturing, marketing, labeling, packaging, and selling” the
products. 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, a practice expressly permitted under Rule
56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 56(a) (“A party may move
for summary judgment, identifying each claim or defense—or the part of each claim
or defense—on which summary judgment is sought.”).
I have previously addressed similar arguments in Kaiser v. C.R. Bard, Inc., No.
2:12-cv-3655, 2016 WL 6782743, at *3 (S. D. W. Va. Nov. 15, 2016). As this MDL has
aged, the court has had additional opportunities to conduct further review of the
evidence. The court now concludes that summary judgment is inappropriate on this
count. Accordingly, Bard’s Motion on this count is DENIED.
IV.

Conclusion
For the reasons discussed above, it is ORDERED that Bard’s Motion for Partial

Summary Judgment [ECF No. 27] is GRANTED in part and DENIED in part. Bard’s

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Motion is GRANTED with regard to the following claims: Count I in part (to the
extent it alleges Negligent Manufacturing Defect); Count III (Strict Liability Manufacturing Defect); Count V (Breach of Express Warranty); and Count VI (Breach
of Implied Warranty). Bard’s Motion is DENIED in all other respects.
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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February 2, 2018