Oliver v. Bos. Scientific Corp.

• Decision Date: 05 October 2015
• Docket Number: Civil Action No. 2:13-cv-01736
• Court: U.S. District Court — Southern District of West Virginia
• Parties: JOYCE OLIVER, Plaintiff, v. BOSTON SCIENTIFIC CORP., Defendant.

JOYCE OLIVER, Plaintiff, v. BOSTON SCIENTIFIC CORP., Defendant.

Civil Action No. 2:13-cv-01736

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

October 5, 2015

MEMORANDUM OPINION AND ORDER

(Defendant's Motion for Summary Judgment)

Pending before the court is DefendantBoston Scientific Corp.'s ("BSC")Motion for Summary Judgment and Memorandum in Support Against PlaintiffJoyce Oliver("Motion")[Docket 33].As set forth below, BSC's Motion is GRANTED IN PART with respect to BSC's defense of the statute of limitations regarding any claims based on the Obtryx Transobturator Mid-Urethral Sling System, and with respect to the plaintiff's claims of strict liability for manufacturing defect, strict liability for failure to warn, negligent manufacturing, negligent failure to warn, breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, and fraudulent concealment.BSC's Motion is DENIED IN PART with respect to the plaintiff's claims of strict liability for design defect and negligent design.

I.Background

This case resides in one of seven MDLs assigned to me 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").In the seven MDLs, there are more than72,000 cases currently pending, approximately 19,000 of which are in the Boston ScientificCorp. MDL, MDL 2326.In an effort to efficiently and effectively manage this massive MDL, I decided to conduct pretrial discovery and motions practice on an individualized basis so that once a case is trial-ready, it can then be promptly transferred or remanded to the appropriate district for trial.To this end, I ordered the plaintiffs and defendant to each select 50 cases, which would then become part of a "wave" of cases to be prepared for trial and, if necessary, remanded.(See Pretrial Order # 65, In re Boston Scientific Corp. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-002326, entered Dec. 19, 2013, available at http://www.wvsd.uscourts.gov/MDL/boston/orders.html).This selection process was completed twice, creating two waves of 100 cases, Wave 1 and Wave 2.Ms. Oliver's case was selected as a Wave 1 case by the plaintiffs.

PlaintiffJoyce Oliver was surgically implanted with the Obtryx Transobturator Mid-Urethral Sling System (the "Obtryx") on September 8, 2008, and the Advantage Fit System (the "Advantage Fit") on July 18, 2011.¹(Pl. Fact Sheet [Docket 33-4], at 5).She received the surgery at a hospital in St. Petersburg, Florida, and Clearwater, Florida, respectively.(Id.).Her surgeries were performed by Dr. Meena Jain and Dr. Craig Barkley, respectively.(Id.).The plaintiff claims that as a result of implantation of the Obtryx and Advantage Fit, she has experienced multiple complications.She brings the following claims against BSC: strict liability for manufacturing defect, design defect, and failure to warn; negligence; breaches of express and implied warranties; fraudulent concealment; and punitive damages.(Short Form Compl. [Docket 1]¶ 13).

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 preclude the granting of a summary judgment motion.SeeDash 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

Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in MDL cases such as this.The choice of law for these pretrial motions depends on whether they involve federal or state law."When analyzing questions of federal law, the transferee court should apply the lawof 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 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.SeeIn 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 Chi., Ill., 644 F.2d 594, 610(7th Cir.1981);In re Digitek Prods. Liab. Litig., MDLNo. 2:08-md-01968, 2010 WL 2102330, 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, as Ms. Oliver did in this case, I consult the choice-of-law rules of the state in which the implantation surgery took place.SeeSanchez v. Boston Scientific Corp., 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, I 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.").Ms. Oliver received her implantation surgery in Florida.(Short Form Compl. [Docket 1]¶ 11).Thus, the choice-of-law principles of Florida guide this court's choice-of-law analysis.

These principles compel application of Florida law."In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significantrelationship . . . ."Bishop v. Fla. Specialty Paint Co., 389 So. 2d 999, 1001(Fla.1980)(quotingRestatement (Second) of Conflict of Laws ("Restatement")§ 146);see alsoid.(quotingRestatement§ 145)(listing factors to consider when determining which state has the most significant relationship to a dispute).

Here, the plaintiff is a Florida resident.(Short Form Compl. [Docket 1]¶ 4).In addition, she was implanted with the device and allegedly suffered injury in Florida.(Id.¶¶ 11, 13).Accordingly, Florida has the most significant relationship of any state to the occurrence alleged in this lawsuit and to the parties.Thus, I apply Florida's substantive law to this case.

III.Analysis

The plaintiff has conceded the following claims: strict liability for manufacturing defect, negligent manufacturing, breach of express warranty, breach of implied warranties, and fraudulent concealment.(Pl.'s Resp. in Opp'n to Def.'s Mot. for Summ. J.("Resp.")[Docket 67], at 17-18).Therefore, BSC's Motion on these claims is GRANTED.I analyze the remaining claims below.

A.Statute of Limitations

In a products-liability action, the statute of limitations is four years.Fla. Stat. 95.11(3)(e).The statute of limitations "runs from the time the cause of action accrues,"id.§ 95.031, but is subject to the discovery rule: "[T]he period run[s] from the date that the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence."Id.§ 95.031(2)(b).The limitations period is triggered when a plaintiff has knowledge of a possible causal connection between her injury and the product in question.Walls v. Armour Pharm. Co., 832 F. Supp. 1467, 1478(M.D. Fla.1993)(citingBabush v. Am. Home Prods. Corp., 589 So. 2d 1379, 1381(Fla. Dist. Ct. App.1991)), aff'd sub nom.Christopher v. Cutter Labs., 53 F.3d 1184(11th Cir.1995);seeCarter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 938(Fla.2000)(citing with approvalTanner v. Hartog, 618 So. 2d 177(Fla.1993)).

The plaintiff was implanted with the Obtryx on September 8, 2008.(Pl. Fact Sheet [Docket 33-4], at 5).In her deposition, she admitted that within a few weeks of her Obtryx implantation surgery, she told Dr. Jain, her implanting physician, that "I think it's the sling that's causing these problems."(Oliver Dep. [Docket 67-3], at 204:9-22).Therefore, I FIND that the limitations period was triggered at that time, a few weeks after September 8, 2008, and ran until a few weeks after September 8, 2012.SeeWalls, 832 F. Supp. at 1478.The plaintiff filed suit on January 31, 2013, several months outside of the limitations period.(See Short Form Compl.[Docket 1]).Thus, to the extent the plaintiff's...