Mallory v. Boston Scientific Corporation

Filing 48

MEMORANDUM OPINION AND ORDER (Defendants Motion for Summary Judgment) The 19 MOTION by Boston Scientific Corporation for Summary Judgment is GRANTED in part and DENIED in part; BSC's Motion for Summary Judgment is GRANTED with respect to Count III (Strict Liability - Manufacturing Defect); Count V (Breach of Express Warranty); Count VI (Breach of Implied Warranty); and Count VIII (Discovery Rule, Tolling, and Fraudulent Concealment), and these claims are DISMISSED with prejudice; and the Motion is DENIED with respect to Count I (Negligence), Count II (Strict Liability - Design Defect), Count IV (Strict Liability - Failure to Warn), and Count IX (Punitive Damages). Signed by Judge Joseph R. Goodwin on 7/27/2018. (cc: counsel of record; any unrepresented party) (mek)

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

CIVIL ACTION NO. 2:17–cv–02459

BOSTON SCIENTIFIC CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
(Defendant’s Motion for Summary Judgment)
Pending before the court is the Motion for Summary Judgment [ECF No. 19]
filed by defendant Boston Scientific Corporation (“BSC”). The Motion is ripe for
adjudication because the briefing is complete. As set forth below, the Motion is
GRANTED in part and DENIED in part.
I.

Background
This action involves a Florida plaintiff who was implanted with the Obtryx

Transobturator Mid-Urethral Sling System, a mesh product manufactured by BSC,
on April 21, 2014 in St. Petersburg, Florida. 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 six remaining active MDLs, there are
nearly 14,000 cases currently pending, approximately 2700 of which are in the BSC
MDL, MDL No. 2326.

In an effort to manage this MDL efficiently and effectively, I decided to conduct
pretrial discovery and motions practice on an individualized basis. To this end, I
selected certain cases to become part of a “wave” of cases to be prepared for trial and,
if necessary, remanded. I enter a docket control order subjecting each active case in
the wave to the same scheduling deadlines, rules regarding motion practice, and
limitations on discovery. See, e.g., Pretrial Order (“PTO”) # 165, In re Bos. Sci. Corp.

Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-02326, June 21, 2017,
http://www.wvsd.uscourts.gov/MDL/boston/orders.html.

The

instant

case

was

selected as part of BSC Wave 3.
II.

Legal Standards
A. 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
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

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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.
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

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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.
B. Choice of Law
The parties agree 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. Bos. Sci. Corp., 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, 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.”). In this case, the implantation

4

surgery took place in Florida. Thus, Florida’s choice-of-law principles guide the court’s
choice-of-law analysis.
“Florida applies the ‘significant relationship test’ as set forth in the
Restatement (Second) of Conflict of Laws to choice of law issues arising from tort
claims.” Crowell v. Clay Hyder Trucking Lines, Inc., 700 So. 2d 120, 122 (Fla. 1997)
(citing Bishop v. Fla. Specialty Paint Co., 389 So. 2d 999 (Fla. 1980)).
Under this two-part test, the court must determine
which state has the most significant contacts between the
parties and the accident, in light of the policy
considerations set forth in section 6 of the Restatement.
Thus, in personal injury actions the law of the state where
the injury occurred applies only when there is no other
state with a more significant interest. Restatement
(Second) Conflict of Laws §§ 145, 175 (1971); State Farm
Mut. Auto. Ins. Co v. Olsen, 406 So. 2d 1109 (Fla. 1981).

Id. at 123.
Here, the plaintiff is a Florida resident, received her implant in Florida, and
suffered her alleged injuries in Florida. Accordingly, I FIND that Florida has the most
significant relationship to the lawsuit, and I apply Florida’s substantive law to this
case.
III.

Analysis
BSC argues that it is entitled to summary judgment on all of the plaintiff’s

claims because they lack a legal or evidentiary basis.
A. Conceded Claims
The plaintiff concedes the following claims: Count III (Strict Liability –
Manufacturing Defect); Count V (Breach of Express Warranty); Count VI (Breach of

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Implied Warranty); and Count VIII (Discovery Rule, Tolling, and Fraudulent
Concealment). Accordingly, BSC’s Motion regarding these counts is GRANTED.
B. Remaining Claims
I FIND that genuine disputes of material fact exist regarding the plaintiff ’s
remaining claims challenged by BSC. Accordingly, BSC’s Motion as to all remaining
claims is DENIED.
IV.

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

Summary Judgment [ECF No. 19] is GRANTED with respect to Count III (Strict
Liability – Manufacturing Defect); Count V (Breach of Express Warranty); Count VI
(Breach of Implied Warranty); and Count VIII (Discovery Rule, Tolling, and
Fraudulent Concealment), and these claims are DISMISSED with prejudice. It is
further ORDERED that the Motion is DENIED with respect to Count I (Negligence),
Count II (Strict Liability – Design Defect), Count IV (Strict Liability – Failure to
Warn), and Count IX (Punitive Damages).
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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July 27, 2018