In re C. R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187

• Decision Date: 04 June 2013
• Docket Number: 2:11-cv-00012,MDL No. 2187
• Parties: In re: C. R. BARD, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO CIVIL ACTION NUMBER: Queen, et al. v. C. R. Bard, Inc.
• Court: U.S. District Court — Southern District of West Virginia

IN RE: C. R. BARD, INC.,

PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION

THIS DOCUMENT RELATES TO CIVIL ACTION NUMBER:

Queen, et al. v. C. R. Bard, Inc.

MDL No. 2187

2:11-cv-00012

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

ENTER: June 4, 2013

MEMORANDUM OPINION AND ORDER

(Bard's Motion for Partial Summary Judgment Against Plaintiffs and Plaintiffs' Motion

for Summary Judgment on Bard's Affirmative Defenses)

Pending before the court are Defendant C. R. Bard, Inc.'s ("Bard") Motion for Partial Summary Judgment Against Plaintiffs Wanda Queen and Greg Queen [Docket 138] and Plaintiffs' Motion for Partial Summary Judgment on Defendant Bard's Affirmative Defenses and Brief in Support Thereof [Docket 142]. Responses and replies have been filed, and the motions are ripe for review. As set forth below, Bard's motion for partial summary judgment is GRANTED in part with respect to the plaintiffs' manufacturing defect, breach of express and implied warranty, and negligent inspection, marketing, packaging, and selling claims and DENIED in part with respect to the plaintiffs' failure to warn claim, and the plaintiffs' motion for partial summary judgment is GRANTED in part as to Bard's contributory negligence affirmative defenses (Nos. 6, 12, and 14 in part) and federal preemption affirmative defense (No. 26) and DENIED in part as to the remaining defenses.

I. Background

This case is one of several thousand assigned to me by the Judicial Panel on Multidistrict Litigation and one of four bellwether cases currently set for trial pursuant to Pretrial Order # 32.¹ These MDLs involve use of transvaginal surgical mesh to treat pelvic organ prolapse or stress urinary incontinence. The four bellwether cases involve implantation of one or more products, but only the pelvic organ prolapse products are at issue. In this case, Wanda Queen and her husband Greg Queen (collectively referred to as "plaintiffs") allege that Ms. Queen suffered injuries as a result of the Avaulta Solo Anterior Synthetic Support System ("Avaulta product") that was implanted in her.² The Complaint alleges claims based on Ms. Queen's injuries from the Avaulta product and Mr. Queen's loss of consortium. The Complaint alleges the following causes of action: 1) negligence; 2) strict liability - design defect; 3) strict liability -manufacturing defect; 4) strict liability - failure to warn; 5) breach of express warranty; 6) breach of implied warranty; 7) loss of consortium; and 8) punitive damages. (See Compl. [Docket 1]). In the instant motions, Bard moves for summary judgment on several of these claims, and the plaintiffs move for summary judgment on several of Bard's affirmative defenses.³

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., Ltd. 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 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, 490 U.S. 228 (1989).

B. Choice of Law

Under 28 U.S.C. § 1407, this court has authority to rule on pre-trial motions. In multidistrict litigation cases such as this, the choice-of-law for these pre-trial motions depends on whether they involve 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 haveapplied 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) (internal citations omitted). In cases based on diversity jurisdiction, the choice-of-law rules to be used are those of the states where the actions were originally filed. See In re Air Disaster at Ramstein Air Base, Ger., 81 F.3d 570, 576 (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."); In re Air Crash Disaster Near Chicago, 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).

This case was originally filed in the Northern District of Georgia. Therefore, I apply Georgia choice-of-law rules. Under Georgia law, the traditional lex loci delicti rule generally applies to tort actions. Dowis v. Mud Slingers, Inc., 621 S.E.2d 413 (Ga. 2005). Under the lex loci delicti rule, the law of the place where the tort or wrong occurred governs the substantive rights of the parties. See Federated Rural Elec. Ins. Exch. v. R.D. Moody & Assocs., Inc., 468 F.3d 1322, 1325 (11th Cir. 2006) (applying Georgia law). In addition, Georgia's choice-of-law system has an unusual characteristic: "the application of another jurisdiction's laws is limited to statutes and decisions construing those statutes." Frank Briscoe Co., Inc. v. Georgia Sprinkler Co., Inc., 713 F.2d 1500, 1503 (11th Cir. 1983) (citing Budget Rent-A-Car Corp. v. Fein, 342 F.2d 509 (5th Cir. 1965) and White v. Borders, 123 S.E.2d 170 (Ga. Ct. App. 1961)). "When no statute is involved, Georgia courts apply the common law as developed in Georgia rather than foreign case law." Id.; accord Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 725 n.6 (11th Cir. 1987) ("If a particular state does not have a controlling statute, however, the Georgia choice of law rule requires application of the common law as construed by the courts of Georgia);Briggs & Stratton Corp. v. Royal Globe Ins. Co., 64 F. Supp. 2d 1340, 1343-44 (M.D. Ga. 1999) (gathering post-Frank Briscoe cases from appellate courts of Georgia and concluding that rule from Frank Briscoe remains valid Georgia choice-of-law rule).

Here, the surgery to implant Ms. Queen's Avaulta product was performed in North Carolina and any alleged injuries occurred in North Carolina. Accordingly and because North Carolina has a product liability statute, North Carolina substantive law would typically apply. See N.C. Gen. Stat. § 99B et seq. One complication remains: North Carolina explicitly does not recognize strict liability in product liability actions. N.C. Gen. Stat. § 99B-1.1. Georgia recognizes a public policy exception to the traditional lex loci delicti rule. See Bailey v. Cottrell, Inc., 721 S.E.2d 571, 573 (Ga. Ct. App. 2011); Alexander v. Gen. Motors Corp., 478 S.E.2d 123, 123-24 (Ga. 1996). In Bailey, the Court of Appeals of Georgia found that while Georgia law recognizes product liability claims based upon strict liability, Indiana law does not. See 721 S.E.2d at 573. Rather, Indiana law recognizes only a common law negligence claim for defective design product liability. Id. at 574. On this basis, the court concluded that "this distinction in Indiana law violates Georgia public policy." Id. Additionally, the court held that the plaintiffs were "entitled to have Georgia law, including Georgia law regarding any defenses to such a claim, e.g., assumption of risk, applied to their claims." Id. Accordingly, I apply Georgia substantive law to both the plaintiffs' product liability claims and to Bard's affirmative defenses. I will discuss each motion for summary judgment in turn below.

III. Bard's Motion for Summary Judgment

Bard argues that it is entitled to partial summary judgment because (1) the plaintiffs' manufacturing defect claims fail for lack of evidence; (2) the plaintiffs' failure to warn claims fail as a matter of law under the learned intermediary doctrine; (3) the plaintiffs' breach ofwarranty claims fail for lack of privity; and (4) the plaintiffs have not pursued their claims related to negligent inspection, marketing, packaging, and selling.

A. Manufacturing Defect

Bard contends that the plaintiffs have presented no evidence that the Avaulta product implanted in Ms. Queen deviated from the underlying specifications for Avaulta products generally, and therefore the plaintiffs have presented no evidence of a manufacturing defect under Georgia law. The plaintiffs contend that they are entitled to proceed under their manufacturing defect or "inadvertent design" claim because they have produced evidence that the Avaulta product "failed to operate as intended." (Pls.' Resp. in Opp'n to Def. Bard's Mot. for Partial Summ. J. [Docket 202], at 4) [hereinafter Pls.' Resp.].

i. Law

The first issue for the court to...