Tatum v. C. R. Bard, Inc.

Filing 40

MEMORANDUM OPINION AND ORDER (Defendant's Motion for Summary Judgment) The 15 MOTION by C. R. Bard, Inc. for Summary Judgment is GRANTED in part and DENIED in part. The motion is GRANTED as to Count III (Strict Liability - Manufacturing Defec t); Count V (Breach of Express Warranty); and Count VI (Breach of Implied Warranty). The motion is also GRANTED as to the plaintiff's request for punitive damages. The Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 1/31/2018. (cc: counsel of record; any unrepresented party) (mek)

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

Civil Action No. 2:16–cv–11821

C. R. BARD, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
(Defendant’s Motion for Summary Judgment)
Pending before the court is Defendant C.R. Bard, Inc.’s Motion for Summary
Judgment [ECF No. 15]. The plaintiff filed a response [ECF No. 19], and the
defendant filed a reply [ECF No. 20]. The matter is ripe for adjudication. For the
reasons stated herein, the motion is GRANTED in part and DENIED in part.
I.

Background
This case involves a Nebraska plaintiff implanted with the Align TO Urethral

Support System, a mesh product manufactured by C.R. Bard Inc. (“Bard”), on
January 23, 2012 in Omaha, Nebraska. Short Form Compl. ¶¶ 1–12 [ECF No. 1]. 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 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 twenty cases in the Bard MDL. The list
included nearly 3000 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, Mar. 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
A. Summary Judgment
To obtain summary judgment, the moving party must show that there is no

genuine issue 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).

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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 Felty v.

Graves Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987); Ross v. Comm’ns
Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), abrogated on other grounds, Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989).
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, Nebraska. 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.”).
Nebraska follows the “most significant relationship” test, as set out in the
Restatement (Second) of Conflicts of Laws § 146. Malena v. Marriott Int’l, Inc., 651
N.W.2d 850, 856 (Neb. 2002). Under § 146, a presumption arises in favor of the choice
of law rules of the place of the injury unless another state “has a more significant
relationship to the parties and the occurrence with respect to a particular issue.” Id.
Here, the plaintiff resides in Nebraska, she was implanted with the product at issue
in Nebraska, and her alleged injuries and follow-up care took place in Nebraska.
Therefore, the court FINDS that the substantive law of Nebraska governs the
plaintiff’s claims.
III.

Discussion
A. Conceded Claims

The plaintiff concedes the following claims: 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

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is GRANTED. The plaintiff also conceded that she is not entitled to punitive damages
under Nebraska law. Therefore, Bard’s Motion is also GRANTED as to the plaintiff’s
request for punitive damages.
B. Negligence
Bard contends that the plaintiff’s claims for negligent marketing, inspection,
packaging and selling of the product fail for lack of evidence. 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.
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/or 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

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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.
C. Remaining Claims
After considering the parties’ proffered arguments and evidence, I FIND that
genuine disputes of material fact exist regarding the plaintiff ’s remaining claims. As
such, to the extent Bard’s Motion challenges any other claims, the Motion is DENIED.
IV.

Conclusion
The defendant’s motion for summary judgment is GRANTED in part and

DENIED in part. The motion is GRANTED as to Count III (Strict Liability Manufacturing Defect); Count V (Breach of Express Warranty); and Count VI (Breach
of Implied Warranty). The motion is also GRANTED as to the plaintiff’s request for
punitive damages. The 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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January 31, 2018