IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

JENNIFER COOPER, et al.,

Plaintiffs,

v. CIVIL ACTION NO. 2:12-cv-01660

JOHNSON & JOHNSON, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER Pending before the court is the plaintiffs’ Motion for Partial Summary Judgment [ECF No. 71] wherein the plaintiffs move for partial summary judgment on various affirmative defenses raised by defendants Ethicon, Inc. and Johnson & Johnson (collectively, “Ethicon”). As set forth below, the plaintiffs’ Motion is GRANTED. I. Background This action involves Kentucky co-plaintiffs, one of whom was implanted with a mesh product manufactured by Ethicon, Tension-free Vaginal Tape (“TVT”), on January 20, 2004, at St. Elizabeth Medical Center, Edgewood, Kentucky, by Dr. Edward R. Flicker. Am. Short Form Compl. [ECF No. 17] ¶¶ 1–12. The case resides in one of seven MDLs assigned to the Honorable Joseph R. Goodwin 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”). This individual case is one of a group of cases that the Clerk of the Court reassigned to me on November 22, 2016. [ECF No. 86]. In the seven MDLs, there are approximately

28,000 cases currently pending, approximately 17,000 of which are in the Ethicon MDL, MDL 2327. Prior to the reassignment, in an effort to efficiently and effectively manage the massive Ethicon MDL, Judge Goodwin decided to conduct pretrial discovery and motions practice on an individualized basis so that once a case is trial-ready (that is, after the court has ruled on all summary judgment motions, among other things), it can then be promptly transferred or remanded to the appropriate district for trial. To

this end, Judge Goodwin ordered the plaintiffs and defendants to submit a joint list of 200 of the oldest cases in the Ethicon MDL that name only Ethicon, Inc., Ethicon, LLC, and/or Johnson & Johnson. These cases became part of a “wave” of cases to be prepared for trial and, if necessary, remanded. Pretrial Order No. 206, , No. 2:12-md-002327, Nov. 20, 2015, [http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html]. The plaintiffs’ case

was selected as an “Ethicon Wave 2 case.” II. Legal Standards A. Summary Judgment A court may use partial summary judgment to dispose of affirmative defenses. ,

(M.D. Fla. 1996). 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.” ,

(1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. ,

, 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. ,

. 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. ,

, 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. , 477 U.S. at 252. Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of a summary judgment motion. ,

(4th Cir. 2013); ,

(4th Cir. 1997).

3 B. Choice of Law The parties agree that Kentucky choice-of-law principles apply to this case and that these principles compel the application of Kentucky law to the plaintiffs’ claims.

Under

, 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.

,

, 1055 (8th Cir. 1996) (citations omitted). To determine the applicable state law for a dispositive motion, the court generally refers to the choice-of-law rules of the jurisdiction where a plaintiff first filed her claim. ,

(5th Cir. 1996) (“Where a transferee court presides over several diversity actions consolidated under the multidistrict rules, the choice of law rules of each jurisdiction in which the transferred actions were originally filed must be applied.”); ,

, 610 (7th Cir. 1981); , MDL No. 2:08-md-01968,

, at *7 (S.D. W. Va. May 25, 2010). If a plaintiff files her claim directly into the MDL in the Southern District of West Virginia, however, I consult the choice-of-law rules of the state in which the plaintiff was implanted with the product. 4 , 2:12-cv-05762,

, at *4 (S.D. W. Va. Jan. 17, 2014). This case was filed directly into the MDL in the Southern District of West Virginia. Therefore, I use Kentucky’s choice-of-law rules to determine which state’s law to

apply to this case. Kentucky courts apply a “significant contacts” test for tort claims. ,

(Ky. 1972). Under this rule, “significant contacts— not necessarily the most significant contacts” permit the application of Kentucky law. Moreover, “any significant contact with Kentucky [i]s sufficient to allow Kentucky law to be applied.” ,

(Ky. 1996); ,

, 145 n.8 (Ky. 2009)

(finding “significant contacts” with Kentucky and applying Kentucky law even though the plaintiff was exposed to asbestos when he worked at the defendant’s Indiana plant). Here, Kentucky is where the plaintiffs reside, where the TVT implant surgery took place, and where their claimed injuries occurred. Thus, I FIND that Kentucky has significant contacts with the case, and I apply Kentucky law. III. Analysis

The plaintiffs argue they are entitled to summary judgment on the defendants’ affirmative defenses of contributory negligence, comparative fault, and/or comparative negligence of Ms. Cooper’s physicians. Specifically, the plaintiffs challenge ¶¶ 42, 45, 51, 66, and 77 of the Master Answer and Jury Demand of Defendant Ethicon, Inc. to First Amended Master Complaint (“Ethicon Master

5 Answer”) [ECF No. 78-1] and 4 44, 47, 53, 67, and 78 of the Master Answer and Jury Demand of Defendant Johnson & Johnson to First Amended Master Complaint (“Johnson & Johnson Master Answer”) [ECF No. 78-2]. The plaintiffs argue that their Motion should be granted because the defenses are without legal or evidentiary support. In its Response, Ethicon waives all of the defenses contained in 4 42, 45, 51, 66, and 77 of Ethicon’s Master Answer and { { 44, 47, 53, 67, and 78 of Johnson & Johnson’s Master Answer to the extent they are based on the purported negligence of Ms. Cooper’s physicians. Accordingly, the plaintiffs’ Motion with regard to these defenses is GRANTED. IV. Conclusion For the reasons discussed above, the court ORDERS that the plaintiffs’ Motion for Partial Summary Judgment [ECF No. 71] is GRANTED. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: December 12, 2017

ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE