Mullins et al v. Ethicon, Inc. et al PTO #184 IN MDL 2327 CONSOLIDATED THIRTY-SEVEN CASES FOR TRIAL AND DESIGNATED THIS CASE AS THE LEAD CASE; FILINGS IN THE CONSOLIDATED CASES ARE TO BE DOCKETED HEREIN, No. 2:2012cv02952 - Document 1540 (S.D.W. Va. 2017)

Court Description: MEMORANDUM OPINION AND ORDER (Defendants' Motion for Partial Summary Judgment re: Alberta Miller, No. 2:13-cv-32627) Ethicon's 1061 Motion for Partial Summary Judgment is GRANTED with regard to the following claims: manufacturing defect, fraud, fraudulent concealment, constructive fraud, breach of warranty (express and implied), violation of consumer protection laws, unjust enrichment, strict liability-defective product, failure to warn, and negligent misrepresentation; and Ethicon's Motion is DENIED in all other respects. Signed by Judge Joseph R. Goodwin on 1/19/2017. (cc: counsel of record; any unrepresented party) (kp)

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Mullins et al v. Ethicon, Inc. et al PTO #... THE CONSOLIDATED CASES ARE TO BE DOCKETED HEREIN Doc. 1540 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION TERRESKI MULLINS, et al., Plaintiffs, v. CIVIL ACTION NO. 2:12-cv-02952 ETHICON, INC., et al., Defendants. MEMORANDUM OPINION AND ORDER (Defendants’ Motion for Partial Summary Judgment re: Alberta Miller, No. 2:13-cv-32627) Pending before the court is the defendants’ Motion for Partial Summary Judgment [ECF No. 1061]. As set forth below, the defendants’ Motion is GRANTED in part and DENIED in part. I. Background This case represents the consolidation of twenty-six out of nearly 28,000 cases filed against Ethicon, Inc. and Johnson & Johnson, Inc. (collectively “Ethicon”). The Ethicon MDL is one of seven MDLs assigned to me related to pelvic mesh, collectively encompassing over 60,000 cases. This action involves twenty-six West Virginia plaintiffs who were implanted with Tension-free Vaginal Tape (“TVT”), a mesh product manufactured by Ethicon to treat stress urinary incontinence (“SUI”). These cases have been consolidated on all claims. See Pretrial Order No. 184 [ECF No. 25] (“PTO”); Fourth Am. Docket Control Order [ECF No. 258]; Order, Dec. 27, 2016, at 2 Dockets.Justia.com [ECF No. 1527] (“The trial will address all triable issues in each 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.” 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). 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 2 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). B. Choice of Law “[B]ecause the plaintiffs are West Virginia residents and had their surgeries at hospitals in West Virginia, the cases solely implicate West Virginia law.” Pretrial Order No. 184 at 4 (citing McKinney v. Fairchild Intern., Inc., 487 S.E.2d 913, 922 (W. Va. 1997) (“Traditionally, West Virginia courts apply the lex loci delicti choice-oflaw rule; that is, the substantive rights between the parties are determined by the law of the place of injury.”)). Accordingly, West Virginia law governs the plaintiff’s case. III. Analysis Ethicon argues it is entitled to summary judgment because the plaintiff’s legal theories are without evidentiary or legal support. A. Conceded Claims The plaintiff concedes the following claims: manufacturing defect, fraud, fraudulent concealment, constructive fraud, breach of warranty (express and implied), violation of consumer protection laws, and unjust enrichment. See Pls.’ Resp. 1 n.1 [ECF No. 1297]. Accordingly, Ethicon’s Motion regarding those claims is GRANTED. 3 B. Failure to Warn The evidence shows that the plaintiff’s implanting physician did not rely on the TVT’s Instructions for Use and that any other warning would not have altered his decision to perform the surgery on the plaintiff. See generally Dr. Sze Dep., May 13, 2016 [ECF No. 1061-2]; Dr. Sze Dep., June 25, 2016 [ECF No. 1061-1]. Based on the evidence, the operation of the learned intermediary doctrine stymies the plaintiff’s failure to warn claims against Ethicon. See Tyree v. Bos. Sci. Corp., 56 F. Supp. 3d 826, 833 (S.D. W. Va. 2014) (predicting that the West Virginia Supreme Court would apply the learned intermediary doctrine in the medical device context). Accordingly, Ethicon’s Motion on this point is GRANTED. C. To Negligent Misrepresentation the extent that the plaintiff has not conceded her negligent misrepresentation claim, the claim is simply a repackaged failure to warn claim. But the plaintiff has not identified any particular statements by Ethicon upon which she relied. If the learned intermediary doctrine “could be avoided by casting what is essentially a failure to warn claim under a different cause of action . . . then the doctrine would be rendered meaningless.” In re Norplant Contraceptive Prods. Liab. Litig., 955 F. Supp. 700, 709 (E.D. Tex. 1997). I predict with confidence that, if confronted with this issue, the West Virginia Supreme Court would hold that the learned intermediary doctrine applies to all claims based on a medical device manufacturer’s alleged negligent misrepresentation. Accordingly, Ethicon’s Motion 4 regarding the plaintiff’s negligent misrepresentation claim is GRANTED. D. Defective Product West Virginia does not recognize a claim for “defective product.” Instead, state law recognizes three categories of claims regarding defective products: design defect, structural defect, and use defect. See Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666, 682 (W. Va. 1979). Accordingly, Ethicon’s Motion as to Count IV (Strict Liability—Defective Product) is GRANTED. E. . All Remaining Claims The court FINDS that genuine disputes of material fact exist regarding the plaintiffs’ remaining claims challenged by Ethicon. Accordingly, Ethicon’s Motion as to all remaining claims is DENIED. IV. Conclusion For the reasons discussed above, it is ORDERED that Ethicon’s Motion for Partial Summary Judgment [ECF No. 1061] is GRANTED in part and DENIED in part. Ethicon’s Motion is GRANTED with regard to the following claims: manufacturing defect, fraud, fraudulent concealment, constructive fraud, breach of warranty (express and implied), violation of consumer protection laws, unjust enrichment, strict liability—defective product, failure to warn, and negligent misrepresentation. Ethicon’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. 5 ENTER: 6 January 19, 2017

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