IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA 

 

CHARLESTON DIVISION 

 

 

 

HOLLY JONES, et al.,

Plaintiffs,

v. CIVIL ACTION NO. 2:12-cv-0443

ETHICON, INC., et al.,

Defendants.

 

MEMORANDUM OPINION AND ORDER 

(Defendants’ Motion for Summary Judgment)

Pending before the court is the defendants’ Motion for Summary Judgment 

[ECF No. 92]. As set forth below, the defendants’ Motion is GRANTED in part and 

DENIED in part. 

I. Background 

 

This case resides in one of seven MDLs assigned to the court 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 than 58,000 cases currently pending, approximately 

28,000 of which are in the Ethicon, Inc. and Johnson & Johnson, Inc. (“Ethicon”) 

MDL, MDL 2327. In an effort to efficiently and effectively manage this massive MDL, 

the court 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 

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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, the court 

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. See Pretrial Order No. 193, In re Ethicon, Inc. Pelvic Repair 

Sys. Prods. Liab. Litig., No. 2:12-md-002327, Aug. 19, 2015, available at 

http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. I completed this selection 

process four times and selected the plaintiff’s case as a Wave 1 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 

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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 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 

 

Under 28 U.S.C. § 1407, 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.

In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 

1055 (8th Cir. 1996) (internal citations omitted). To determine the applicable state

law for a dispositive motion, the court generally refers to the choice-of-law rules of 

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the jurisdiction where the plaintiff first filed her claim. 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 Chi., 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 California. Therefore, I use California’s choice-of-law rules to 

determine which state’s law to apply to this case. 

California courts apply a three-step governmental interest approach to resolve 

choice-of-law disputes. Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914, 922 

(Cal. 2006); Hurtado v. Super. Ct., 522 P.2d 666, 669 (Cal. 1974). Under the first step, 

the court should determine whether the laws of each potential jurisdiction actually 

differ. Kearney, 137 P.3d at 922. Second, where the laws of each jurisdiction differ, 

the court must determine whether a “true” conflict exists by determining whether 

each state has an interest in applying its law in this case. Id. Finally, if a true conflict 

exists, the court will determine “which state's interest would be more impaired if its 

policy were subordinated to the policy of the other state” and apply that state's law. 

Id. (quoting Bernhard v. Harrah's Club, 546 P.2d 719, 723 (Cal. 1976)). 

The first step—whether the laws of California and Michigan actually differ—

is satisfied. California and Michigan apply different tests to establish liability for 

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design defect claims. One particular difference lies in the requirement that a plaintiff 

shows the existence of a practical alternative design. Michigan places a burden on 

the plaintiff to produce evidence showing “that there was a reasonable alternative 

design available.” Peck v. Bridgeport Machs., Inc., 237 F.3d 614, 617 (6th Cir. 2001) 

(citing Owens v. Allis-Chalmers Corp., 326 N.W.2d 372 (Mich. 1982)). California, 

however, states that “it is not the plaintiff’s burden in a design defect case to prove 

the existence of a feasible alternative design.” Altman v. HO Sports Co., Inc., 821 F. 

Supp. 2d 1178, 1196 n.17 (E.D. Cal. 2011) (quoting Ford v. Polaris Indus., Inc., 43 

Cal. Rptr. 3d 215, 228 (Cal. Ct. App. 2006)). Because these requirements stand in 

opposition to one another, I find that the laws of California and Michigan differ. I now 

move to the second step. 

Under the second step, I must determine whether both states have an interest 

in having their respective laws applied in this case. In other words, I must decide 

whether “only one of the states has an interest in having its law applied.” Wash. Mut. 

Bank, FA v. Super. Ct., 15 P.3d 1071, 1081 (Cal. 2001). If only one state has an 

interest in having its law applied here, I will apply the law of that state. 

Michigan is the only state with an interest in this case. The plaintiff is a 

Michigan resident and was implanted with Ethicon’s product in Michigan. Michigan 

has an interest in protecting its residents from injuries that occurred within its 

territorial jurisdiction. I find that Michigan’s interests would be significantly 

impaired if its law were not applied. The parties agree that these principles compel 

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application of Michigan law.1 Thus, the court applies Michigan’s substantive law to 

this case.

III. Analysis 

 

Ethicon argues it is entitled to summary judgment because the plaintiffs’ legal 

theories are without evidentiary or legal support. 

A. Negligence – Manufacturing Defect 

In their Response, the plaintiffs expressly withdraw their manufacturing 

defect claim. Accordingly, Ethicon’s Motion with regard to this claim is GRANTED. 

B. Strict Liability Claims 

“Michigan does not accept strict liability as the basis of a claim on which relief 

can be granted.” Magnant v. Medtronic, Inc., 818 F. Supp. 204, 206 (W.D. Mich. 1993) 

(citing Prentis v. Yale Mfg. Co., 365 N.W.2d 176, 181–86 (Mich. 1984)); see Radeljak 

v. Daimlerchrysler Corp., 719 N.W.2d 40, 47 n.10 (Mich. 2006) (listing Michigan as 

one of six states that does not recognize strict liability) (citing Piper Aircraft Co. v. 

Reyno, 454 U.S. 235, 252 n.18 (1981)). In the products liability context, only

negligence and implied warranty are recognized, “not strict liability.” Toth v. Yoder 

Co., 749 F.2d 1190, 1193 (6th Cir. 1984) (citing Hartford Fire Ins. v. Walter Kidde & 

Co., 328 N.W.2d 29, 33 (Mich. Ct. App. 1982)).

 

1 The parties agree that Michigan substantive law applies. The defendants applied California’s 

governmental interest test to determine that Michigan substantive law applies. Def.’s Mem. in Supp. 

of Mot. for Summ. J. [ECF No. 93]. Additionally, the plaintiffs do not dispute that Michigan 

substantive law applies. See Response 7 [ECF No. 100].

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Accordingly, the plaintiffs’ strict liability claims must fail as a matter of law. 

Ethicon’s Motion regarding the plaintiffs’ strict liability – manufacturing defect, strict

liability – failure to warn, strict liability – defective product, and strict liability –

design defect claims is GRANTED.

C. Negligent Infliction of Emotional Distress 

Under Michigan law, 

[a] plaintiff may recover for negligent infliction of emotional distress 

where (1) the injury threatened or inflicted on the third person is a 

serious one, of a nature to cause severe mental disturbance to the 

plaintiff, (2) the shock results in actual physical harm, (3) the plaintiff 

is a member of the third person's immediate family, and (4) the plaintiff 

is present at the time of the accident or suffers shock ‘fairly 

contemporaneous’ with the accident.

Taylor v. Kurapati, 600 N.W.2d 670, 693 (Mich. Ct. App. 1999). Thus, “Michigan 

recognizes the tort of negligent infliction of emotional distress only when a plaintiff 

witnesses negligent injury to a third party and suffers mental disturbance as a 

result.” Teadt v. Lutheran Church Mo. Synod, 603 N.W.2d 816, 823 n.6 (Mich. Ct. App. 

1999) (citing Duran v. Det. News, Inc., 504 N.W.2d 715 (Mich. Ct. App. 1993)); see 

Gillespie v. City of Battle Creek, 100 F. Supp. 3d 623, 634 (W.D. Mich. 2015).

The plaintiffs’ complaint does not allege that they witnessed injury to an 

immediate family member. To the contrary, the plaintiffs only allege direct injury to 

Ms. Jones. Accordingly, Ethicon’s Motion for Summary Judgment regarding the 

plaintiffs’ negligent infliction of emotional distress claim is GRANTED.

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D. Remaining Claims 

After considering the parties’ proffered arguments and evidence, I FIND that 

genuine disputes of material fact exist regarding the plaintiff’s remaining claims. 

Accordingly, to the extent Ethicon’s Motion challenges any other claims, the Motion 

is DENIED. 

IV. Conclusion 

 

For the reasons discussed above, it is ORDERED that Ethicon’s Motion for 

Summary Judgment [ECF No. 92] is GRANTED in part and DENIED in part. 

Ethicon’s Motion is GRANTED with regard to the plaintiff’s negligence –

manufacturing defect, strict liability – manufacturing defect, strict liability – failure 

to warn, strict liability – defective product, and strict liability – design defect claims.

To the extent that Ethicon’s Motion challenges any other claims, the Motion is 

DENIED. 

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record 

and any unrepresented party.

ENTER: December 21, 2016

 

 

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