Opinion
Civil Action No. 2:12-cv-5886
03-21-2017
JUNE C. HUFFEY, et al., Plaintiffs, v. C. R. BARD, INC., Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court are all remaining pretrial motions. All are ripe for adjudication.
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 than 58,000 cases currently pending, approximately 7,000 of which are in the Bard MDL, MDL 2187. In an effort to efficiently and effectively manage this MDL, I 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 Daubert motions and summary judgment motions, among other things), 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 ("PTO") # 102, No. 2:10-md-2187 [ECF No. 729]. This selection process was completed twice, creating two waves of 100 cases, Wave 1 and Wave 2. Thereafter, I entered orders on subsequent waves. Ms. Huffey's case was selected as a Wave 2 case by the plaintiffs. PTO # 118, No. 2:10-md-2187 [ECF No. 841].
II. Legal Standards
a. Summary Judgment
To obtain summary judgment, "the movant must show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In turn, to avoid summary judgment, the nonmovant must offer some "concrete evidence from which a reasonable juror could return a verdict" in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
b. Choice of Law
Under 28 U.S.C. § 1407, this court has authority to rule on pretrial motions in MDL cases. To determine the applicable state law for a dispositive motion, the court generally refers to the choice-of-law rules of 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); 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 Western District of Arkansas. Therefore, I use Arkansas's choice-of-law rules to determine which state's law to apply to this case. Arkansas courts consider the lex loci delicti doctrine and Dr. Robert A. Leflar's five choice-influencing factors in conjunction when analyzing choice of law problems. Ganey v. Kawasaki Motors Corp., U.S.A., 234 S.W.3d 838, 847 (Ark. 2006); Schubert v. Target Stores, Inc., 201 S.W.3d 917, 922-23 (Ark. 2005). "Under the doctrine of lex loci delicti, the law of the place where the wrong took place is the proper choice of law." Ganey, 234 S.W.3d at 846. The five choice-influencing factors, promulgated by Dr. Leflar, include (1) predictability of results, (2) maintenance of interstate and international order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interests, and (5) application of the better rule of law. Id. The Leflar factors, however, are used only to soften "a rigid formulaic application" of the lex loci delicti doctrine. See Gomez v. ITT Educ. Servs., Inc., 71 S.W.3d 542, 546 (Ark. 2002). In the case at bar, those factors are inapposite. The implantation surgery that allegedly resulted in Ms. Huffey's injuries took place in Arkansas, where Ms. Huffey is a resident. Moreover, both parties agree that Arkansas is the proper choice of law. Accordingly, Arkansas's substantive law governs this case.
III. Discussion
a. Bard's Motion for Summary Judgment [ECF No. 55]
Bard's Motion for Summary Judgment [ECF No. 55] is GRANTED in part as to the following conceded claims: manufacturing defect and breach of express and implied warranty.
For the following reasons, Bard's Motion for Summary Judgment [ECF No. 39] is also GRANTED in part as to the following claims: negligent inspection, marketing, labeling, packaging, and selling. "The essential elements of a negligence or gross negligence claim are (1) the existence of a duty on the part of the defendant to conform to a specific standard of conduct to protect the plaintiff; (2) breach of that duty by the defendant; (3) injury to the plaintiff actually and proximately caused by the defendant's breach; and (4) resulting damages to the plaintiff or his property." Cross v. W. Waste Indus., 469 S.W.3d 820, 825 (Ark. Ct. App. 2015) (citing Chambers v. Stern, 64 S.W.3d 737 (Ark. 2002)).
Bard contends that the plaintiffs' claims for negligent inspection, packaging, marketing, and selling of the product fail for lack of evidence. The plaintiffs argue that Bard misconstrues the nature of their negligence argument, and that their allegations regarding the inspection, marketing, labeling, packaging, and selling of the product comprise part of their general negligence claim, rather than distinct theories of recovery. In short, the plaintiffs assert that Bard failed to adequately study or test its mesh products to determine if the products were adequately safe.
A review of the plaintiffs' Count I in the Master Complaint, Master Compl. ¶¶ 62-67, No. 2:10-md-2187 [ECF No. 199], reveals that the plaintiffs asserted three distinct negligence theories under "Count I." The bulk of the Count I allegations make claims for negligent failure to warn and negligent design defect. The other negligence allegations posit that Bard was "negligent . . . in designing, manufacturing, marketing, labeling, packaging, and selling" the product. Id. at ¶ 64. Further, a review of the plaintiffs' state court Complaint, Compl. ¶¶ 63-65 [ECF No. 1], reveals that the plaintiff similarly alleged Bard "negligently . . . manufactured, . . . packaged, labeled, . . . displayed, [and] sold" the product. Thus, the plaintiffs' concern that Bard is misconstruing the plaintiffs' negligence claim is meritless; Bard simply chose to address the plaintiffs' different theories of negligence separately. However, apart from reciting allegations that form the plaintiffs' failure to warn and design defect claims, the plaintiffs do not offer sufficient support to create a genuine dispute that Bard breached a legal duty that caused the plaintiffs' injuries in its inspection, marketing, labeling, packaging, or selling of the product. Accordingly, Bard's Motion on these points is GRANTED.
After considering the parties' proffered arguments and evidence, I FIND that genuine disputes of material fact exist regarding the plaintiffs' remaining claims. Accordingly, to the extent Bard's Motion challenges any other claims, the Motion is DENIED.
b. Bard's Motion for Partial Summary Judgment [ECF No. 57]
The question of whether a plaintiff is entitled to punitive damages often involves an interlocking web of factual determinations respecting the defendant's conduct. The evidentiary record is frequently muddled enough on the point that genuine issues of material fact remain. That is the case here. Consequently, Bard is not, at least at this stage of the case, entitled to judgment as a matter of law on the punitive damages claim. Thus, the Motion for Partial Summary Judgment [ECF No. 57] is DENIED.
c. The plaintiffs' Motion to Strike [ECF No. 112]
For reasons appearing to the court, the plaintiffs' Motion to Strike [ECF No. 112] is DENIED as moot.
IV. Conclusion
The court ORDERS that:
• Bard's Motion for Summary Judgment [ECF No. 55] is GRANTED in part and DENIED in part;
• Bard's Motion for Partial Summary Judgment [ECF No. 57] is DENIED; and
• The plaintiffs' Motion to Strike [ECF No. 112] is DENIED as moot.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.
ENTER: March 21, 2017
/s/_________
JOSEPH R. GOODWIN
UNITED STATES DISTRICT JUDGE