IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JUDY M. PRIDDY,
Plaintiff,
v. CIVIL ACTION NO. 2:13–cv–10318
C. R. BARD, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER (Defendant’s Motion for Summary Judgment) Pending before the court is the Motion for Summary Judgment (“Motion”) [ECF No. 45], filed by defendant C. R. Bard, Inc. (“Bard”) on September 21, 2017. The plaintiff has filed an response [ECF No. 50], and Bard has filed a reply [ECF No. 52]. As set forth below, the Motion is GRANTED in part and DENIED in part. I. Background This action involves an Oregon plaintiff implanted with the Align TO Urethral Support System and the Avaulta Plus Anterior Support System, mesh products manufactured by Bard, on October 18, 2007 in Portland, Oregon. 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 (“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 twenty cases in the Bard MDL. The list included nearly 3,000 cases. From these cases, I selected 333 cases to become part of a “wave” of cases to be prepared for trial and, if necessary, remanded. Pretrial Order No. 236, , No. 2:10– md–02187, Jan. 27, 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 4 case. 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.” , 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. , 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.” , 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. 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.” at 325; , 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. , 166 F. App'x 674, 678 (4th Cir. 2006) (citing , 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. , 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. at 252. Likewise, conclusory allegations or unsupported speculations, without more, are insufficient to preclude the granting of a summary judgment motion. , 731 F.3d 303, 311 (4th Cir. 2013); , 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. , 477 U.S. at 322-23. B. Choice of Law The parties agree that Oregon choice-of-law principles apply to this case and that these principles compel the application of Oregon 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.
, 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. , 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.”). The plaintiff underwent the implantation surgery in Oregon. Thus, Oregon’s choice-of-law principles guide the court’s choice-of-law analysis.
Oregon courts employ “the most significant relationship” test to determine which state’s substantive law to apply in a tort action. , 49 P.3d 803, 809 (Or. Ct. App. 2002). Under this test, the court must evaluate the contacts of each interested state and determine which state “has the most significant contacts” with the lawsuit. , 157 P.3d 1194, 1200 (Or. Ct. App. 2007). In doing so, the court
must balance six factors: “(a) the place where the injury occurred, (b) the place where the conduct occurred, (c) the domicil, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. , 428 P.2d 898, 900 (Or. 1967).
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JUDY M. PRIDDY,
Plaintiff,
v. CIVIL ACTION NO. 2:13–cv–10318
C. R. BARD, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER (Defendant’s Motion for Summary Judgment) Pending before the court is the Motion for Summary Judgment (“Motion”) [ECF No. 45], filed by defendant C. R. Bard, Inc. (“Bard”) on September 21, 2017. The plaintiff has filed an response [ECF No. 50], and Bard has filed a reply [ECF No. 52]. As set forth below, the Motion is GRANTED in part and DENIED in part. I. Background This action involves an Oregon plaintiff implanted with the Align TO Urethral Support System and the Avaulta Plus Anterior Support System, mesh products manufactured by Bard, on October 18, 2007 in Portland, Oregon. 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 (“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 twenty cases in the Bard MDL. The list included nearly 3,000 cases. From these cases, I selected 333 cases to become part of a “wave” of cases to be prepared for trial and, if necessary, remanded. Pretrial Order No. 236, , No. 2:10– md–02187, Jan. 27, 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 4 case. 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.” , 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. , 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.” , 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. 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.” at 325; , 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. , 166 F. App'x 674, 678 (4th Cir. 2006) (citing , 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. , 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. at 252. Likewise, conclusory allegations or unsupported speculations, without more, are insufficient to preclude the granting of a summary judgment motion. , 731 F.3d 303, 311 (4th Cir. 2013); , 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. , 477 U.S. at 322-23. B. Choice of Law The parties agree that Oregon choice-of-law principles apply to this case and that these principles compel the application of Oregon 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.
, 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. , 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.”). The plaintiff underwent the implantation surgery in Oregon. Thus, Oregon’s choice-of-law principles guide the court’s choice-of-law analysis.
Oregon courts employ “the most significant relationship” test to determine which state’s substantive law to apply in a tort action. , 49 P.3d 803, 809 (Or. Ct. App. 2002). Under this test, the court must evaluate the contacts of each interested state and determine which state “has the most significant contacts” with the lawsuit. , 157 P.3d 1194, 1200 (Or. Ct. App. 2007). In doing so, the court
must balance six factors: “(a) the place where the injury occurred, (b) the place where the conduct occurred, (c) the domicil, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. , 428 P.2d 898, 900 (Or. 1967). Here, the plaintiff resides in Oregon, she was implanted with the products at issue in Oregon, and her alleged injuries and follow-up care occurred in Oregon. Accordingly, I FIND that Oregon has the most significant relationship, and I apply
Oregon’s substantive law to this case. III. Analysis Bard argues it is entitled to summary judgment because the relevant statutes of limitations bars certain claims. Bard also argues it is entitled to summary judgment because the plaintiffs’ claims are without evidentiary or legal support. 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). Bard’s Motion regarding these counts is GRANTED. B. Negligence Bard contends that the plaintiff’s claims for negligent inspection, marketing, 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. . 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.”). Regardless, however, the plaintiff identifies in the record support sufficient to create a genuine dispute of material fact regarding whether Bard breached a legal duty that caused the plaintiff’s injuries in its “inspection, marketing, labeling, packaging, or selling” of the product. The Motion on these points is DENIED. C. All Remaining Claims The court FINDS that genuine disputes of material fact exist regarding the plaintiffs remaining claims challenged by Bard, including timeliness under the Oregon statute of limitations. The Motion as to all remaining claims is DENIED. IV. Conclusion For the reasons discussed above, it is ORDERED that Bard’s Motion for Summary Judgment [ECF No. 45] is GRANTED in part and DENIED in part. Bard’s Motion is GRANTED with regard to the following claims: 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: February 1, 2018
Np ew STATES DISTRICT JUDGE