Christina Latta v. Mentor Corporation, et al

Filing

Opinion issued by court as to Appellant Christina P. Latta. Decision: Reversed and Remanded. Opinion type: Non-Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11519

Date Filed: 03/09/2017

Page: 1 of 28

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10119
________________________
D.C. Docket Nos. 4:08-md-02004-CDL,
4:12-cv-00307-CDL
DEBORAH ANN ROGERS,
Plaintiff-Appellant,
versus
MENTOR CORPORATION,
MENTOR LLC,
Defendants-Appellees.
________________________
No. 16-10120
________________________
D.C. Docket Nos. 4:08-md-02004-CDL,
4:12-cv-00319-CDL

Case: 16-11519

Date Filed: 03/09/2017

Page: 2 of 28

VICTORIA KEARSE,
Plaintiff-Appellant,
versus
MENTOR CORPORATION,
MENTOR LLC,
Defendants-Appellees.
_______________________
No. 16-10122
________________________
D.C. Docket Nos. 4:08-md-02004-CDL,
4:12-cv-00323-CDL

SAMANTHA SHIREY,
BRIAN SHIREY,
Plaintiff-Appellants,
versus
MENTOR CORPORATION,
MENTOR LLC,
Defendants-Appellees.

2

Case: 16-11519

Date Filed: 03/09/2017

Page: 3 of 28

_______________________
No. 16-10124
________________________
D.C. Docket No. 4:08-md-02004-CDL,
4:13-cv-00048-CDL
BETTY LOU SHAFFER,
Plaintiff-Appellant,
versus
MENTOR CORPORATION,
MENTOR LLC,
Defendants-Appellees.
_______________________
No. 16-10351
________________________
D.C. Docket Nos. 4:08-md-02004-CDL,
4:13-cv-00093-CDL
MICHELE RENE JACKSON,
Plaintiff-Appellant,
versus
MENTOR CORPORATION,
3

Case: 16-11519

Date Filed: 03/09/2017

Page: 4 of 28

MENTOR LLC,
Defendants-Appellees.
_______________________
No. 16-10354
________________________
D.C. Docket Nos. 4:08-md-02004-CDL,
4:13-cv-00101-CDL
ANDREA JEAN RUPERT,
Plaintiff-Appellant,
versus
MENTOR CORPORATION,
MENTOR LLC,
Defendants-Appellees.
_______________________
No. 16-10355
________________________
D.C. Docket Nos. 4:08-md-02004-CDL,
4:13-cv-00153-CDL

CARRIE M. KLUM,
ANTHONY D. KLUM,

4

Case: 16-11519

Date Filed: 03/09/2017

Page: 5 of 28

Plaintiffs-Appellants,
versus
MENTOR CORPORATION,
MENTOR LLC,
Defendants-Appellees.
_______________________
No. 16-10356
________________________
D.C. Docket Nos. 4:08-md-02004-CDL,
4:13-cv-00346-CDL

ROSA GRACIELA URBIETA,
MATEO URBIETA,
Plaintiffs-Appellants,
versus
MENTOR CORPORATION,
MENTOR LLC,
Defendants-Appellees.

_______________________
No. 16-10357
________________________
5

Case: 16-11519

Date Filed: 03/09/2017

Page: 6 of 28

D.C. Docket Nos. 4:08-md-02004-CDL,
4:14-cv-00061-CDL

LIBBY M. HALL,
Plaintiff-Appellant,
versus
MENTOR CORPORATION,
MENTOR LLC,
Defendants-Appellees.
_______________________
No. 16-11519
________________________
D.C. Docket Nos. 4:08-md-02004-CDL,
4:12-cv-00311-CDL

CHRISTINA P. LATTA,
Plaintiff-Appellant,
versus
MENTOR CORPORATION,

6

Case: 16-11519

Date Filed: 03/09/2017

Page: 7 of 28

MENTOR LLC,
Defendants-Appellees.
_______________________
No. 16-11520
________________________
D.C. Docket Nos. 4:08-md-02004-CDL,
4:13-cv-00092-CDL
MARGIE H. GREENMAN,
Plaintiff-Appellant,
versus
MENTOR CORPORATION,
MENTOR LLC,
Defendants-Appellees.
_______________________
No. 16-12841
________________________
D.C. Docket Nos. 4:08-md-02004-CDL,
4:13-cv-00027-CDL
MELISSA WATSON ROBINSON,
Plaintiff-Appellant,
7

Case: 16-11519

Date Filed: 03/09/2017

Page: 8 of 28

versus
MENTOR CORPORATION,
MENTOR LLC,
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Middle District of Georgia
________________________
(March 9, 2017)
Before WILSON and JILL PRYOR, Circuit Judges, and BUCKLEW, * District
Judge.
WILSON, Circuit Judge:
Plaintiffs filed claims against Mentor Corporation and Mentor LLC
(collectively, “Mentor”) for products liability and negligence. Plaintiffs asserted
that Mentor’s product, ObTape Transobturator Tape (ObTape), a transvaginal
mesh product designed to treat urinary incontinence, caused them to suffer injuries.
Mentor moved for summary judgment, asserting that Plaintiffs’ claims were time
barred under Minnesota’s statutes of limitation for tort claims. The district court
granted summary judgment to Mentor.
On appeal, Plaintiffs argue that the district court erred when it concluded
that the Plaintiffs knew of a connection between the ObTape and their injuries
*

Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida,
sitting by designation.
8

Case: 16-11519

Date Filed: 03/09/2017

Page: 9 of 28

more than six years before they brought suit.1 We conclude that because
Minnesota law requires a plaintiff to know of a causal connection, and not just a
mere connection, the district court erred in dismissing Plaintiffs’ claims as time
barred. Applying the discovery rule to Plaintiffs’ claims, a reasonable jury could
conclude that Plaintiffs did not know of a causal connection between the ObTape
and their injuries more than six years before filing suit. Therefore, we reverse and
remand for further proceedings consistent with this opinion.
I.

BACKGROUND

This appeal stems from personal injury lawsuits brought by twelve Plaintiffs
against Mentor for its product, ObTape. ObTape is a transvaginal mesh (also
called a suburethal sling) used to treat stress urinary incontinence. Plaintiffs each
sought treatment for stress urinary incontinence and subsequently were implanted
with the ObTape. At some point, each Plaintiff experienced injuries and
underwent a procedure to remove some or all of the ObTape.
Plaintiffs allege that when Mentor launched ObTape in 2003 Mentor was
fully aware that the product could erode and cause serious infections, but Mentor
fraudulently concealed this information from the medical community. The
1

In their initial case, Plaintiffs also brought claims against Mentor for fraudulent concealment.
Those claims were dismissed as time barred at summary judgment. This appeal is only for
Plaintiffs’ negligence and strict liability claims, not their fraud claims. In this appeal, Plaintiffs
continue to assert fraudulent concealment as a defense to toll the statute of limitations. However,
because we conclude that the district court misapplied the statute of limitations rule, we need not
address Plaintiffs’ fraudulent concealment defense.
9

Case: 16-11519

Date Filed: 03/09/2017

Page: 10 of 28

product-insert data sheets (PIDs) that accompany ObTape when it is given to
doctors listed infection and erosion as rare events. In early 2006, after receiving
numerous reports of adverse events, Mentor withdrew ObTape from the market.
I.

Melissa Robinson Watson
Plaintiff Melissa Robinson Watson sought treatment for stress urinary

incontinence and received her ObTape implant in May 2004. Watson experienced
negative side effects within 25 days of receiving her ObTape implant. It was
partially removed two weeks later. After viewing a television commercial
regarding transvaginal mesh complications, she filed her lawsuit in January 2013.
Watson has suffered from diabetes since she was 17, and before her ObTape
implant surgery, her doctor warned her that her diabetes could cause
complications. Therefore, when she began to experience erosion and infection, she
attributed it to her diabetes and not ObTape. Watson’s doctor did not recall
specifically what he told Watson, but he did acknowledge that he wrote “diabetes”
in his notes.
The district court, in finding that Watson’s claims were time barred, noted
that Watson knew the “sling had ‘come apart’ . . . through her vaginal wall” in
January 2005 when she underwent a procedure to remove the remaining ObTape.
See In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 2016 WL
1574071, at *1 (M.D. Ga. Apr. 19, 2016). The district court reasoned that because
10

Case: 16-11519

Date Filed: 03/09/2017

Page: 11 of 28

Watson knew there was an erosion of the ObTape, she “knew of, strongly
suspected, or had enough information to know of a connection between ObTape
and at least some of her injuries by the time her doctor excised the ObTape.” Id. at
*3.
II.

Graciela Urbieta
Plaintiff Graciela Urbieta received her ObTape implant in March 2005. In

January 2006, she was diagnosed with necrotizing fasciitis, a potentially lethal
condition, and a thigh abscess. She can no longer run, work out, or sing, and is
forced to wear diapers for her continuing incontinence. After viewing a television
advertisement concerning transvaginal mesh litigation, she filed her suit in July
2013.
Urbieta was treated by several doctors. She claims that none of her doctors
informed her that her injuries were caused by her ObTape. One doctor did not
even know she had been implanted with ObTape, and thus could not have
concluded it was the cause. Another physician diagnosed Urbieta with an eroded
sling and removed the sling in December 2006.
The district court concluded that Urbieta should have known of a connection
between the ObTape and her symptoms because she knew the sling was infected,
and because she had an excision surgery to remove it in December 2006. In re

11

Case: 16-11519

Date Filed: 03/09/2017

Page: 12 of 28

Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 2015 WL 9307267,
at *7 (M.D. Ga. Dec. 21, 2015).
III.

Victoria Kearse

Plaintiff Victoria Kearse received her ObTape implant to treat her stress
urinary incontinence in November 2004. She immediately suffered several side
effects including foul-smelling vaginal discharge, severe pain, and several large
painful cysts. Kearse underwent several surgical procedures to excise her ObTape,
the third and final surgery taking place in September 2005. She also underwent
three other surgeries to remove her cysts. Kearse still suffers from abdominal pain.
After hearing about media accounts of transvaginal mesh litigation from her sister,
Kearse filed her suit in October 2012.
Kearse believed, and it was confirmed by her doctor, that her own body and
not her ObTape was the cause of her injuries. Her doctor informed her that her
condition was caused by “thin vaginal mucosa,” rather than the ObTape. The
district court however concluded that because Kearse underwent surgery, she
“knew by September 2005 that there was a connection between ObTape and some
of her injuries.” In re Mentor Corp. Obtape Transobturator Sling Prods. Liab.
Litig., 2015 WL 8578364, at *4 (M.D. Ga. Dec. 9, 2015).
IV.

Betty Lou Shaffer

12

Case: 16-11519

Date Filed: 03/09/2017

Page: 13 of 28

Plaintiff Betty Lou Shaffer received her ObTape implant in November 2003.
Shortly thereafter, she began experiencing vaginal pain, which she described as a
“sandpaper-like sensation.” Shaffer’s doctor explained that Shaffer’s ObTape had
eroded through the incision, and the doctor performed surgery to remove part of
the ObTape in February 2004. Shaffer continues to experience vaginal pain and
has had to forgo intercourse as a result of her ObTape injuries. After viewing a
lawyer advertisement regarding transvaginal mesh complications, Shaffer filed her
claim in January 2013.
Until the advertisement, Shaffer claims that she was under the impression
that her injuries were a product of her body rejecting a foreign body. However, the
district court found that, because Shaffer underwent the removal surgery in January
2004 she “knew of a connection between ObTape and some of her injuries” in
2004. Id. at *5. The district court also noted that after the removal surgery,
Shaffer’s “sandpaper pain feeling went away.” Id. But Shaffer has asserted that
she continues to experience vaginal pain and has had to forgo intercourse.
V.

Samantha Shirey
Plaintiff Samantha Shirey received her ObTape implant in December 2004.

The following year, Shirey experienced multiple symptoms including vaginal odor,
pain radiating from her thigh, fever, groin pain, and pain during intercourse. In
July 2006, Shirey went through two surgeries to remove her ObTape. After seeing
13

Case: 16-11519

Date Filed: 03/09/2017

Page: 14 of 28

a commercial regarding transvaginal mesh complications, Shirey filed her
complaint in October 2012.
Shirey claims that she had no reason to attribute her injury to the mesh. She
experienced the same symptoms when suffering from urinary tract infections
before the mesh was implanted, so she believed the injury was just a worsening of
those infections. Mentor alleges that between Shirey’s first and second removal
surgeries, her doctor told her that the swelling in her leg was caused by the mesh,
and then he removed the ObTape. Shirey refutes this and asserts that her physician
attributed her pain to an earlier procedure. However, in Shirey’s deposition, she
also noted that her physician informed her that removal of the mesh might alleviate
her symptoms.
The district court focused on the fact that Shirey’s doctor “recommended
removing as much of the remaining mesh as possible [and] performed a second
excision surgery in July 2006. Therefore, Shirey knew by July 2006 that there was
a connection between ObTape and some of her injuries.” Id. at *4.
VI.

Michele Rene Jackson

Plaintiff Michele Rene Jackson received her ObTape implant in March 2004.
After experiencing severe vaginal pain, severe back and leg pain, and painful
intercourse, Jackson underwent surgery to remove the ObTape in November 2004.

14

Case: 16-11519

Date Filed: 03/09/2017

Page: 15 of 28

Jackson filed her complaint shortly after seeing an attorney advertisement about
transvaginal mesh in March 2013.
Jackson maintains that neither of her doctors told her that ObTape caused
her injuries. One of her doctors testified that while he recommended mesh
extraction, he probably attributed the injuries not to a problem with the mesh but to
Jackson’s overactivity or poor tissue. But Mentor points out that, before Jackson’s
surgery, one of her doctors told her that the removal would most likely take away
her pain. Therefore, she should have known about the connection between
ObTape and her injuries.
Relying on the statement from Jackson’s doctor telling her that the revision
surgery “would most likely take away [Jackson’s] pain,” the district court
concluded that Jackson knew by October 2004 that there was likely a connection
between ObTape and her injuries. In re Mentor Corp. Obtape Transobturator
Sling Prods. Liab. Litig., 2015 WL 9307267, at *7 (M.D. Ga. Dec. 21, 2015).
VII. Deborah Rogers
Plaintiff Deborah Rogers received her ObTape implant in September 2005.
Thereafter, she suffered a thigh abscess and pain and swelling in her leg. To this
date, Rogers suffers from urge incontinence and passes stool intermittently through
her vagina. The ObTape was surgically removed in July 2006. After seeing a

15

Case: 16-11519

Date Filed: 03/09/2017

Page: 16 of 28

television advertisement regarding transvaginal mesh litigation, Rogers filed this
suit in September 2012.
Rogers alleges that she had no reason to know her ObTape was the cause of
her injuries, as none of her doctors informed her it was. Mentor points out that
Rogers herself admitted in her deposition that she learned that ObTape was the
cause of her injuries while at the hospital in July 2006. Rogers disputes this and in
portions of her deposition, as well as in her brief, Rogers alleges that she did not
realize Mentor’s role in her injuries until she saw the television advertisement.
The district court stated that Rogers knew in July 2006 that she had a foreign
body (the ObTape) hanging from her vaginal area and that she had to have it
surgically removed; therefore, Rogers knew in July 2006 that ObTape caused her
injuries. In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 2015
WL 8578364, at *4 (M.D. Ga. Dec. 9, 2015).
VIII. Libby Hall
Plaintiff Libby Hall received her ObTape implant in January 2005 to treat
her stress urinary incontinence. After Hall suffered symptoms such as urinary tract
infections and painful intercourse, the ObTape was removed in July 2005. After
seeing a lawyer advertisement regarding transvaginal mesh complications, Hall
filed her suit in January 2014.

16

Case: 16-11519

Date Filed: 03/09/2017

Page: 17 of 28

In her deposition, Hall pointed out that her doctor told her that “scarring
from the surgery” had “pulled the sling too tight,” causing her symptoms. Mentor
alleges that Hall’s doctor told her that the exposed mesh was likely the cause of her
injuries. However, in the doctor’s deposition he said he could not recall what he
told Hall, but he likely would have told her that the ObTape was near the vaginal
mucosa and palpable to the touch and this was probably the cause of her pain.
The district court reasoned that “Hall’s doctor told her that the ObTape was
likely the source of her pain” 2 and thus “Hall knew in July 2005 that there was a
likely connection between ObTape and some of her injuries.” In re Mentor Corp.
Obtape Transobturator Sling Prods. Liab. Litig., 2015 WL 9307267, at *8 (M.D.
Ga. Dec. 21, 2015).
IX.

Carrie Klum

Plaintiff Carrie Klum received her ObTape implant in June 2004. Klum
suffered from erosion, chronic infections, chronic vaginal pain, and cessation of
intercourse due to pain. Her ObTape was surgically removed in 2006. After
seeing a lawyer advertisement regarding transvaginal mesh litigation, she filed her
suit in May 2013.

2

The district court agreed with Mentor and concluded that the doctor’s deposition revealed that
the doctor told Hall the ObTape was the cause. However, the doctor’s deposition clearly states
that he cannot recall what he told her and Hall refutes Mentor’s allegation.
17

Case: 16-11519

Date Filed: 03/09/2017

Page: 18 of 28

Klum stated at her deposition that she thought her injuries were the result of
a defect in her body and its ability to accept a foreign object like ObTape.
According to her doctor’s deposition, that is also what he believed at the time.
Mentor notes that Klum was informed that her ObTape was infected and told it
needed to be removed. Therefore, Mentor alleges she knew of a connection
between her injuries and the ObTape in 2006.
The district court focused on the fact that Klum’s doctor told her that the
entire ObTape needed to be removed and concluded that “by February 2006 at the
latest, Klum knew that her injuries were connected to ObTape [but] [s]he did not
file her complaint until more than seven years later, on April 29, 2013.” Id. at *7.
X.

Andrea Rupert
Plaintiff Andrea Rupert received her ObTape implant in May 2004. She

suffered groin pain, vaginal discharge, foul odor, a thigh abscess, and other
complications. Her infected ObTape was removed in June 2005. After seeing an
advertisement regarding transvaginal mesh litigation, Rupert filed her complaint in
March 2013.
Rupert notes that her doctor informed her that her body was not adapting
well to the mesh. Rupert also alleges that she engaged in an extraordinary
investigation to find the cause of her injury. Before surgery, she read the brochure
for ObTape and these risks were not listed. After her ObTape became infected, she
18

Case: 16-11519

Date Filed: 03/09/2017

Page: 19 of 28

even communicated with Mentor. Rupert spoke with an ObTape marketing
manager at her excision surgery, who informed her that the product was safe and
led her to believe the product was not the cause of her injuries. 3 Mentor does not
refute this and just points out that Rupert knew she was having complications with
her ObTape when it was removed.
The district court explained that “in August 2005, Rupert visited [a] doctor,
who noted that Rupert was concerned that half of her ObTape was still in her body
and that it may become infected. Thus, by August 2005, Rupert connected her
injuries to ObTape.” Id. at *7.
XI.

Christina Latta

Plaintiff Christina Latta received her ObTape implant in March 2004. After
experiencing discharge and bad odor, Latta underwent four revision surgeries to
remove the ObTape, with the final surgery in September 2005. After seeing a
television advertisement regarding transvaginal mesh litigation, she filed her
complaint in September 2012.
Latta argues that she had no reason to suspect ObTape was the cause of her
problem because her own doctor did not know. Her doctor said he did not know
what was causing Latta’s symptoms but he did not assume it was the ObTape.

3

Rupert noted that “[a] mentor representative documented personal information at my excision
procedure . . . . The representative apologized for the injuries that I was experiencing and
advised that there were no known defects with this product.”
19

Case: 16-11519

Date Filed: 03/09/2017

Page: 20 of 28

Because of the unusual nature of having so many symptoms, Latta’s doctor
suspected that Latta’s body might have an allergy to polypropylene mesh. He told
her that procedures with his other ObTape patients were successful, and therefore
she assumed her problems were unique to her body.
Mentor alleges that Latta was informed that a portion of the ObTape had
eroded through her vaginal wall. Before and after each of her four revision
surgeries, Latta was told in layman’s terms that her ObTape had eroded. The
district court noted that “[a]t the time, Latta believed that her body was rejecting
the ObTape. Therefore, Latta knew in July 2004 that there was a likely connection
between ObTape and some of her injuries.” In re Mentor Corp. Obtape
Transobturator Sling Prods. Liab. Litig., 2016 WL 877773, at *5 (M.D. Ga. Mar.
2, 2016).
XII. Margie Greenman
Plaintiff Margie Greenman received her ObTape implant in January 2004.
She experienced vaginal pain and was told that her ObTape had eroded through her
vaginal wall. She underwent two surgeries to treat this erosion, one in December
2004 and one in 2010. She continues to experience pain, bleeding, urine leakage,
and has had to forgo sexual intercourse because of its painfulness. After reading a
pamphlet in a doctor’s waiting room in 2011, Greenman made the connection
between ObTape and her injuries and filed suit in April 2013.
20

Case: 16-11519

Date Filed: 03/09/2017

Page: 21 of 28

Greenman alleges that her doctor’s warnings before surgery included a
warning that there is a risk of infection whenever you insert a foreign object into
the body. She therefore did not know that ObTape was causally connected to her
injuries until she read the pamphlet. Mentor alleges that Greenman was told that
the ObTape had eroded and therefore she knew of ObTape’s connection to her
injuries.
The district court reasoned that, “Greenman’s doctor diagnosed her with a
vaginal erosion and told her that he needed to excise the exposed portion of
ObTape . . . . Therefore, Greenman knew by November 2004 that there was a
likely connection between ObTape and some of her injuries.” Id.
II.

STANDARD OF REVIEW

“We review a district court’s application of a statute of limitations and its
grant of summary judgment de novo.” F.E.B. Corp. v. United States, 818 F.3d
681, 685 (11th Cir. 2016). The evidence should be viewed in the light most
favorable to the party opposing summary judgment, drawing all justifiable
inferences in the opposing party’s favor. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986). Summary judgment may only be
granted if “there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.” Id. at 247, 106 S. Ct. at 2510
(internal quotation marks omitted). A genuine issue of material fact exists when
21

Case: 16-11519

Date Filed: 03/09/2017

Page: 22 of 28

“the evidence is such that a reasonable jury could return a verdict for the non[-]
moving party.” Id. at 248, 106 S. Ct. at 2510. Summary judgment is only
appropriate if a case is “so one-sided that one party must prevail as a matter of
law.” See id. at 251–52, 106 S. Ct. at 2512.
III.

STATUTES OF LIMITATION

Each Plaintiff initially filed her lawsuit in Minnesota state court. Mentor
subsequently removed each suit to the United States District Court in Minnesota.
The cases were later transferred to the Middle District of Georgia as part of a
multidistrict litigation proceeding regarding ObTape. The parties all agree that
Minnesota law applies to Plaintiffs’ claims.
The issue on appeal is whether the district court properly dismissed
Plaintiffs’ personal injury claims on summary judgment because they were barred
by Minnesota’s statutes of limitation. The Minnesota statute of limitation for a
strict liability claim is four years. See Minn. Stat. § 541.05 subd. 2. The statute of
limitation for a negligence claim is six years. See Minn. Stat. § 541.05 subd. 1(5).
Because we are applying Minnesota law, we must begin by identifying the proper
rule for examining statutes of limitation issues in Minnesota. Minnesota law is not
clear on this point, 4 but the Eighth Circuit has held that the discovery rule is

4

During this appeal, Mentor argued that the court should reexamine the Minnesota rule of
accrual. Mentor advocated that the court should use a “damages” rule and not the Plaintiffs’
suggested “discovery” rule. To support this assertion, Mentor argues that the Minnesota
22

Case: 16-11519

Date Filed: 03/09/2017

Page: 23 of 28

applicable. See Klempka v. G.D. Searle & Co., 963 F.2d 168, 170 (8th Cir. 1992).
Because Minnesota state court holdings are nonexistent or ambiguous on this issue,
we should defer to rulings of the Eighth Circuit and the federal district courts of
Minnesota because those courts are frequently called upon to interpret Minnesota
law. See, e.g., McGregor v. State Mut. Life Ins. Co. of Worcester, Mass., 315 U.S.
280, 281, 62 S. Ct. 607, 607(1942) (per curiam) (“In the absence of such guidance
[from Michigan state courts], we shall leave undisturbed the interpretation placed
upon purely local law by a Michigan federal judge of long experience and by three
circuit court judges whose circuit includes Michigan.”). Therefore we must apply
the discovery rule in light of Eighth Circuit precedent. Under the discovery rule

Supreme Court rejected the discovery rule of accrual fifty years ago in Dalton v. Dow Chem.
Co., 158 N.W.2d 580, 584 (Minn. 1968). However, Minnesota district courts have recently
addressed the apparent conflict in Minnesota law, specifically addressing Dalton and reaffirming
the discovery rule. See Huggins v. Stryker Corp., 932 F. Supp. 2d 972, 985–86 (D. Minn. 2013);
Mack v. Stryker Corp., 2010 WL 4386898, at *2 (D. Minn. Oct. 28, 2010) (both concluding that
“for products liability claims in Minnesota, the discovery rule applies”). Furthermore,
Minnesota has not shied away from adopting a causal standard in other cases. See DeCosse v.
Armstrong Cork Co., 319 N.W.2d 45, 49 (Minn. 1982) (“[T]he act or omission of exposing Mr.
DeCosse to asbestos would continue until the disease manifested itself and was causally linked to
respondents’ products.” (emphasis omitted)).
Mentor also cites to other Minnesota case law that specifically denies the discovery rule, but in a
medical malpractice context. See, e.g., MacRae v. Grp. Health Plan, Inc., 753 N.W.2d 711,
719–20 (Minn. 2008). However, Dalton acknowledged that malpractice scenarios are
fundamentally different. See Dalton, 158 N.W.2d at 585. (“Plaintiff has cited several
malpractice cases involving claims against a physician or clinic . . . . Cases of the foregoing
nature are of a class unto themselves and fail to lend support to [P]laintiff’s position.”).
Finally, while arguing against the strict liability and negligence claims to the district court,
Mentor used the two-prong discovery rule standard from Hildebrant v. Allied Corp., 839 F.2d
396, 398 (8th Cir. 1987). More importantly, that is the standard the district court then adopted.
Given that Minnesota district courts have recently reaffirmed the discovery rule and both parties
argued it to the district court below, we will continue to apply this two-prong standard.
23

Case: 16-11519

Date Filed: 03/09/2017

Page: 24 of 28

two elements must be satisfied before a cause of action accrues in cases involving
injuries caused by a defective product: “(1) a cognizable physical manifestation of
the disease or injury, and (2) evidence of a causal connection between the injury or
disease and the defendant’s product, act, or omission.” See Klempka, 963 F.2d at
170.
IV.

DISCUSSION

In applying the two-prong discovery rule, the district court concluded:
[E]ach Plaintiff connected at least some of her injuries to
ObTape more than six years before she filed suit.
Accordingly, their strict liability and negligence claims
are time-barred under Minnesota law. Plaintiffs contend
that it is not enough that they made a connection between
ObTape and some of their injuries. Rather, they appear
to argue that they must have been on notice that a defect
in ObTape caused their injuries. Plaintiffs did not point
to any Minnesota authority holding that a plaintiff must
be on actual notice that her specific injuries were caused
by a product defect.
In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., No.
2004408MD2004CDL, 2015 WL 9307267, at *8 (M.D. Ga. Dec. 21, 2015)
(emphasis in original). We find these conclusions unpersuasive. While the district
court chose to emphasize the word “defect” in its reasoning, we look at the

24

Case: 16-11519

Date Filed: 03/09/2017

Page: 25 of 28

discovery rule and find the word “causal” to be dispositive. Knowing of a
connection5 is simply not the same as knowing of a causal connection.
Summary judgment is only appropriate when there is no genuine issue as to
any material fact. See Anderson, 477 U.S. at 247, 106 S. Ct. at 2510. Whether a
plaintiff knows of a causal connection between her injuries and the defendant’s
alleged misconduct is an issue of fact. Because a reasonable jury could find that
Plaintiffs here did not know of a causal connection, we find summary judgment
inappropriate. See id. at 248, 106 S. Ct. at 2510. The district court reasoned “that
the cause of action did not accrue until the [P]laintiffs had some objective
information suggesting a causal link between the product and the injury.” In re
Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 2016 WL 1574071,
at *3 (M.D. Ga. Apr. 19, 2016). We agree with that standard as articulated, but we
conclude that the evidence is not so one-sided as to whether Plaintiffs had
information suggesting causation to make summary judgment appropriate. See
Anderson, 477 U.S. at 251–52, 106 S. Ct. at 2512.
Viewing the evidence in the light most favorable to Plaintiffs, none of
Plaintiffs’ doctors attributed Plaintiffs’ symptoms to a problem with the ObTape.
While all the doctors recommended removing the ObTape, and in fact did remove
5

The district court avoided the word “causal” in its application of the discovery rule to Plaintiffs’
claims. In its analysis of each Plaintiff, the court repeatedly used the phrase, “a connection” or
“a likely connection.” See, e.g., In re Mentor Corp. Obtape Transobturator Sling Prods. Liab.
Litig., 2016 WL 877773, at *5 (M.D. Ga. Mar. 2, 2016).
25

Case: 16-11519

Date Filed: 03/09/2017

Page: 26 of 28

some or all of it, none of the doctors could remember telling their patients that the
ObTape was causing the symptoms. Mentor and the district court cite to portions
of the doctors’ depositions in which the doctors recall suggesting removing the
ObTape, or hint that removal might alleviate the patients’ symptoms, but Mentor
cannot point to any evidence that the doctors indicated that ObTape was not merely
involved but was the actual cause of the symptoms. Indeed, nothing in the record
suggests that the doctors knew or should have known of a causal connection. A
sister circuit court reasoned that “lay persons should not be charged with greater
knowledge of their physical condition than that possessed by the physicians on
whose advice they must rely.” See Moyer v. United Dominion Indus., Inc., 473
F.3d 532, 550 (3d Cir. 2007) (applying the Pennsylvania discovery rule). We
agree. It is unfair to expect patients to realize there is a causal connection when
their own doctors do not.
Furthermore, it is not “clear that the limitations’ determination can be made
as a matter of law. [Keeping in mind] that we must view all evidence in the light
most favorable to the nonmovant and draw all reasonable inferences in her favor,
we conclude the limitations issue is for the jury to determine.” See Tuttle v.
Lorillard Tobacco Co., 377 F.3d 917, 922 (8th Cir. 2004).
The district court’s analysis places great weight on the fact that the ObTape
was removed from each Plaintiff. However, this fact alone, while it may raise
26

Case: 16-11519

Date Filed: 03/09/2017

Page: 27 of 28

suspicion that ObTape was involved, is not enough evidence to expect Plaintiffs to
identify a causal connection. In Hildebrandt, the Eighth Circuit held that, under
Minnesota law, “[t]here is a substantial difference between knowledge of injury
and the cause of that injury and mere suspicion.” See Hildebrandt, 839 F.2d at
399. Plaintiffs are entitled to wait until the cause has been “rationally identified.”
See id. While the removal may have caused suspicion, it is not enough evidence of
a causal connection to warrant summary judgment.
Furthermore, this case is similar to Ballew, and there, analyzing a case under
Georgia’s statute of limitation rules (that mirror Minnesota’s rules and require a
“causal connection”) we reversed a grant of summary judgment. See Ballew v. A.
H. Robins Co., 688 F.2d 1325, 1327 (11th Cir. 1982). In that case, the plaintiff
had pelvic pain after a Dalkon Shield intrauterine device (IUD) was implanted.
She asked her doctor whether the IUD was responsible and the doctor said he did
not know. We found that the statute of limitations period did not begin to run until
the plaintiff learned of lawsuits involving the Dalkon Shield IUD. Id. at 1328. We
concluded that the facts could support a finding that the plaintiff knew of a causal
connection between the IUD and her pain, but the facts were equally susceptible of
showing that plaintiff did not know of a causal connection, and therefore the case
was inappropriate for summary judgment. Id. Likewise here, while the facts could
support a finding that Plaintiffs knew their symptoms had something to do with the
27

Case: 16-11519

Date Filed: 03/09/2017

Page: 28 of 28

ObTape, they are equally susceptible of showing that Plaintiffs did not know their
symptoms were caused by the ObTape. For example, in the case of Watson, the
facts could support a finding that she was aware her injuries could be causally
connected to her ObTape when her doctor removed it, but the facts are equally
susceptible of showing that she could not have known of the causal connection
because of her doctor’s warnings regarding her diabetes.
Finally, if we were to disregard the word “causal” in the discovery rule, it
would mean that anytime one uses a product and has injuries near in time, you
should sue or lose your claim. This would lead to pointless litigation and scores of
unripe claims. Indeed, the Eighth Circuit stated in Hildebrandt that, “we do not
believe Minnesota’s applicable statutes of limitation were intended to provoke the
premature commencement of claims for [] sickness.” See Hildebrandt, 839 F.2d at
399.
V.

CONCLUSION

In conclusion, we hold that the Eighth Circuit’s discovery rule is the
appropriate standard for determining the accrual date for the statutes of limitation
in products liability cases under Minnesota law. Applying this standard to
Plaintiffs’ claims, the district court erred in dismissing the claims as time barred.
REVERSED AND REMANDED.

28