In re C.R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig.

Decision Date04 June 2013
Docket NumberMDL No. 2187
CourtU.S. District Court — Southern District of West Virginia



Rizzo, et al. v. C. R. Bard, Inc. 2:10-cv-01224


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

for Summary Judgment on Bard's Affirmative Defenses)

Pending before the court is Defendant C. R. Bard, Inc.'s ("Bard") Motion for Partial Summary Judgment Against Plaintiffs Linda Rizzo and Ronald Rizzo [Docket 166] and Plaintiffs' Motion for Partial Summary Judgment on Bard's Affirmative Defenses and Brief in Support Thereof [Docket 170]. 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, Linda Rizzo and her husband Ronald Rizzo (collectively referred to as "plaintiffs") allege that Ms. Rizzo suffered injuries as a result of the Avaulta Plus Anterior and Posterior Biosynthetic Support Systems ("Avaulta products") that were implanted in her. The Complaint alleges claims based on Ms. Rizzo's injuries from the Avaulta products and Mr. Rizzo'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.2

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 theevidence 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 have applied to the individual cases had they not been transferred for consolidation." In reTemporomandibular 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. Rizzo's Avaulta product was performed in Wisconsin and any alleged injuries occurred in Wisconsin. At the time the plaintiffs filed the instant lawsuit, Wisconsin did not have any statutes governing the plaintiffs' substantive claims, but did have statutes governing Bard's affirmative defenses.3 Accordingly, Georgia law applies to the claims and defenses where no Wisconsin statute governs, and Wisconsin law applies to the defenses where a Wisconsin statute governs.

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 of warranty claims fail for lack of privity; and (4) the plaintiffs have not pursued their claims related to negligent inspection, marketing, packaging, and selling. I will address each of these issues below.

A. Manufacturing Defect

Bard contends that the plaintiffs have presented no evidence that the Avaulta products implanted in Ms. Rizzo 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 thatthe Avaulta products "failed to operate as intended." (Pls.' Resp. in Opp'n to Def. Bard's Motion for Partial Summ. J. [Docket 229], at 4) [hereinafter Pls.' Resp.].

i. Law

The first issue for the court to resolve is the applicable law in Georgia on manufacturing defect claims. Georgia law recognizes "three general categories of product defects: manufacturing defects, design defects, and marketing/packaging defects." Banks v. ICI Americas, Inc., 450 S.E.2d 671, 672 (Ga. 1994) (citing Maleski, Ga. Products Liability (2d ed.), § 5-1). Georgia's strict liability statute, in general, provides:

The manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.

Ga. Code Ann. § 51-1-11(b)(1). In Center...

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