Stafford et al v Mentor Corporation

Filing 301

ORDER re evidence of substantially similar ObTape Complications. Ordered by Judge Clay D. Land on 05/28/2010. (CGC) Associated Cases: 4:08-md-02004-CDL, 3:07-cv-00101-CDL, 3:07-cv-00102-CDL, 3:07-cv-00130-CDL

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION * MDL Docket No. 2004 4:08-MD-2004 (CDL) * Case Nos. * 3:07-cv-00101 (Stafford et al.) 3:07-cv-00102 (Booth et al.) * 3:07-cv-00130 (Dover et al.) ORDER The Court previously ruled that Plaintiffs would be permitted to introduce evidence of substantially similar ObTape complications that occurred in other women after the Plaintiffs were implanted with ObTape, provided are that Plaintiffs establish to that such "other

incidents"

substantially Court

similar

Plaintiffs' to file

injuries. materials

Accordingly,

the

ordered

Plaintiffs

supporting a finding of substantial similarity, and Mentor had an opportunity to respond. After considering the parties' submissions,

including the reply and sur-reply, the Court ruled at today's final pretrial conference that Plaintiffs had satisfied their burden of establishing substantial similarity.1 is set forth in this Order. As the Court previously observed, under binding Eleventh Circuit precedent, "evidence of similar occurrences may be offered to show a defendant's notice of a particular defect or danger, the magnitude of The rationale for that ruling

The Court excluded Plaintiffs' Trial Exhibit 128 because it appears to reference erosions in a product other than ObTape, and Plaintiffs cannot establish that the exhibit does reference ObTape erosions.

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the defect or danger involved, the defendant's ability to correct a known defect, the lack of safety for intended uses, the strength of a product, the standard of care, and causation." Cars, 915 F.2d 641, 650 (11th Cir. 1990). Hessen v. Jaguar

For evidence of similar

occurrences to be relevant, "the proponent of it must show the similarity of conditions and that the occurrences are not too remote in time." E.g., Worsham v. A.H. Robins Co., 734 F.2d 676, 689 (11th

Cir. 1984) (finding no error in trial court's admission of evidence regarding other injuries similar to plaintiff's injury and caused by defendant's product); see also, e.g., Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1313 (11th Cir. 2000) (finding no error in admission of 92 complaints submitted to manufacturer regarding breast implant ruptures where only 13 implants ruptured by exact mechanism plaintiff's had). The Court concluded evidence that meets Plaintiffs' the proffered "similar similar"

complications" requirement.

"substantially

Plaintiffs' evidence involves women (1) who were

implanted with the same product--ObTape;2 (2) by the same surgical procedure; (3) to treat stress urinary incontinence; and (4) who suffered complications such as erosion, infection, malodorous vaginal

As the Court stated at the final pretrial conference, the Court reserves until trial ruling on whether Uratape is sufficiently similar to ObTape such that evidence of Uratape complications may be introduced as a similar occurrence.

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discharge, corrective suggesting

resistance surgeries. that

to

treatment, The Court must

abscesses, rejected be nearly

and/or

multiple argument to be

Mentor's

complications

identical

considered "substantially similar."

See Jackson v. Firestone Tire &

Rubber Co., 788 F.2d 1070, 1083 (5th Cir. 1986) (finding that trial court improperly excluded evidence of all accidents except those involving precise two components involved in plaintiff's case, where disputed danger was mismatch of all multi-piece parts, not just parts at issue in plaintiff's case). The Court also concluded, after

balancing all of the appropriate factors, that Plaintiffs' proffered "similar complications" evidence should not be excluded under Federal Rule of Evidence 403.3

IT IS SO ORDERED, this 28th day of May, 2010.

S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE

The Court reserved ruling on whether any of Plaintiffs' similar complications evidence that occurred after ObTape was explanted from Plaintiffs and thus was not being admitted for purposes of notice should be excluded as impermissible hearsay.

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