Cline v. Mentor Corporation
Filing
82
ORDER granting 79 Motion for Suggestion of Remand. Ordered by U.S. District Judge CLAY D LAND on 02/24/2014. (CGC)
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.
4:10-cv-5060 (C. Cline)
O R D E R
Presently
pending
before
the
Court
is
Defendant
Mentor
Worldwide LLC’s Motion for Suggestion of Remand (ECF No. 79).
For the reasons set forth below, the motion is granted, and the
Court
suggests
that
Plaintiff
Carol
Cline’s
action
against
Mentor be remanded to the United States District Court for the
District of Minnesota.
the
coordinated
This Order contains a brief chronicle of
proceedings
to
provide
guidance
to
the
transferor court after remand.
I.
Brief Background of the Mentor ObTape MDL
Mentor Worldwide LLC manufactured and sold a polypropylene
mesh
suburethral
Tape,
which
was
incontinence.
cleared
ObTape
sling
used
product
to
called
treat
women
ObTape
with
Transobturator
stress
urinary
The United States Food and Drug Administration
for
sale
in
2003
via
its
510(k)
regulatory
process, and ObTape remained on the market in the United States
until March 2006.
Several years ago, women who had been surgically implanted
with ObTape began filing lawsuits against Mentor, alleging that
they had been injured by ObTape—primarily that they suffered
infections caused by ObTape and that
they were injured
ObTape eroded through their bodily tissues.
when
In December 2008,
the Judicial Panel on Multidistrict Litigation created MDL No.
2004
and
transferred
seventeen
actions
involving
alleged
injuries resulting from ObTape to this Court for consolidated
and coordinated pretrial proceedings.
See In re Mentor Corp.
ObTape Transobturator Sling Products Liability Litigation, 588
F. Supp. 2d 1374 (J.P.M.L. 2008).
and
a
cases
bellwether
and
that
approximately
transferred
Since
trial
to
then,
this
MDL
No.
Court
2004
After pretrial proceedings
settled
forty
were
has
mid-trial,
additional
resolved
grown
to
the
original
tag-along
cases
through
settlement.
include
nearly
600
additional tag-along cases, more than 500 of which remain open.
The litigation has been divided into five separate phases; cases
from phases III, IV, and V are still pending.
In 2013, the
Court tried a Phase III bellwether case to verdict.
II.
Suggestion of Remand of Cline’s Case
Plaintiff Carol Cline filed her Complaint against Mentor in
the United States District Court for the District of Minnesota
on September 24, 2010, alleging that she was injured by ObTape.
Cline
v.
Mentor
Corporation,
10-cv-04054
2
(D.
Minn.).
On
November
15,
2010,
the
Judicial
Panel
on
Multidistrict
Litigation transferred Cline’s case to this Court for pretrial
proceedings.
ECF No. 6 in M.D. Ga. 4:10-cv-5060; ECF No. 65 in
JPML MDL No. 2004.
bellwether case.
Cline’s case was designated as a Phase III
Discovery closed in December 2012.
Mentor
filed a summary judgment motion based on a choice of law issue,
asserting that Ohio law
because
Cline
is
a
should be
resident
treatment occurred in Ohio.
of
applied
Ohio
to Cline’s claims
whose
relevant
medical
Mentor further argued that Cline’s
Complaint should be dismissed because it did not state a claim
under the Ohio Product Liability Act.
The Court denied Mentor’s
summary judgment motion on January 24, 2013, concluding that
Minnesota
law
should
be
applied
to
Cline’s
claims
and
that
Cline’s Complaint adequately stated a claim under Minnesota law.
In
re
Mentor
Corp.
ObTape
Transobturator
Sling
Prods.
Liab.
Litig., MDL Docket No. 2004, 2013 WL 286276 (M.D. Ga. Jan. 24,
2013); ECF No. 65 in 4:10-cv-5060.
The parties to MDL No. 2004 selected two bellwether cases
to be tried during the summer of 2013; Cline’s case was not one
of
those
cases.
See
Notice
of
Parties’
Selections, ECF No. 562 in 4:08-md-2004.
Bellwether
Trial
The parties did not
agree to waive their 28 U.S.C. § 1407(a) right to remand of
Cline’s action back to Minnesota.
See Notice Regarding Lexecon
Waivers Involving Remaining Bellwethers, ECF No. 718 in 4:08-md-
3
2004; ECF No. 74 in 4:10-cv-5060.
The Court thus cannot conduct
the trial of this action in the United States District Court for
the Middle District of Georgia.
Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 523 U.S. 26, 40 (1998).
All common discovery and coordinated pretrial proceedings
in Cline’s case are complete, and the case is ready for trial.
Therefore,
10.1(b),
pursuant
the
to
Court
28 U.S.C. §
suggests
to
1407(a)
the
and
Judicial
JPML
Rule
Panel
on
Multidistrict Litigation that Cline’s case be remanded to the
United States District Court for the District of Minnesota.
For the convenience of the transferor court, the Court has
compiled a list of significant filings and orders in the Cline
case and in MDL No. 2004.
That list appears as an appendix to
this Order.
III. Intention to Seek Inter-Circuit Assignment
Under 28 U.S.C. § 292(d), a district judge of one circuit
may serve in another circuit under certain circumstances.
the
Court’s
view,
inter-circuit
assignment
would
allow
In
the
parties to benefit from the Court’s knowledge of MDL No. 2004
and would minimize delay and expense.
This would also be the
first trial of one of these cases in Minnesota, which is the
jurisdiction from which many of these cases originated.
Thus,
this Minnesota trial would provide a good bellwether for the
other Minnesota cases still pending in the MDL proceeding.
4
Upon
remand, the Court will seek an inter-circuit assignment with the
understanding that the Court would preside over the trial of
this matter in the United States District Court for the District
of Minnesota.
CONCLUSION
Mentor’s Motion for Suggestion of Remand (ECF No. 79) is
granted, and the Court suggests that Cline’s case be remanded to
the United States District Court for the District of Minnesota.
The Clerk of the Court shall provide a copy of this Order to the
Clerk of the Judicial Panel on Multidistrict Litigation.
IT IS SO ORDERED, this 24th day of February, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
5
APPENDIX
Significant Filings and Orders in Cline and MDL No. 2004
Filings Specific to Carol Cline
1.
Plaintiff Carol Cline’s Complaint, Sept. 24, 2010. ECF No.
1 in 4:10-cv-5060.
2.
Certified Copy of Conditional Transfer Order (CTO-19), Nov.
15, 2010. ECF No. 6 in 4:10-cv-5060; ECF No. 385 in 4:08md-2004.
3.
Answer to Plaintiff Cline’s Complaint, with Jury Demand,
Dec. 2, 2010. ECF No. 10 in 4:10-cv-5060.
4.
Scheduling/Discovery Order Designating Cline as a Phase III
Case, Mar. 25, 2011.
ECF No. 17 in 4:10-cv-5060; ECF No.
401 in 4:08-md-2004.
See also Scheduling/Discovery Order, Oct. 6, 2011. ECF No.
25 in 4:10-cv-5060; ECF No. 401 in 4:08-md-2004 (listing
Cline as a Phase III case and modifying deadlines).
See also Joint Amended Scheduling/Discovery Order, May 3,
2012. ECF No. 35 in 4:10-cv-5060; ECF No. 466 in 4:08-md2004 (listing Cline as a Phase III case and modifying
deadlines).
See also Amended Scheduling/Discovery Order, July 19, 2012.
ECF No. 41 in 4:10-cv-5060; ECF No. 480 in 4:08-md-2004
(listing Cline as a Phase III bellwether case and modifying
deadlines).
5.
Order Appointing Plaintiffs’ Liaison Counsel and Co-Lead
Counsel, Sept. 21, 2011.
ECF No. 22 in 4:10-cv-5060; ECF
No. 422 in 4:08-md-2004.
Derek H. Potts was appointed Plaintiffs’ Liaison Counsel
and Derek H. Potts, C. Calvin Warriner, and Mark DiCello
were appointed Plaintiffs’ Co-Lead Counsel.
6.
Order Establishing Plaintiffs’ Litigation Expense Fund and
Common Benefit, Aug. 9, 2012. ECF No. 45 in 4:10-cv-5060;
ECF No. 493 in 4:08-md-2004.
This agreement is between Plaintiffs’ counsel and addresses
the sharing among Plaintiffs of the cost of special
services performed and expenses performed for the common
benefit of the Plaintiffs of MDL No. 2004.
6
7.
Order Denying Mentor’s Motion for Summary Judgment, Jan.
24, 2013. ECF No. 65 in 4:10-cv-5060; 2013 WL 286276.
Denied Mentor’s summary judgment motion (ECF No. 58 in
4:10-cv-5060) and concluded that Minnesota law should be
applied to Plaintiff Cline’s case.
8.
Notice
Regarding
Lexecon
Waivers
Involving
Remaining
Bellwethers, Aug. 15, 2013.
ECF No. 74 in 4:10-cv-5060;
ECF No. 718 in 4:08-md-2004.
States that the parties did
not agree to waive Lexecon for Cline’s case.
9.
Motion for Suggestion of Remand of Cline Action, Jan. 15,
2014. ECF No. 74 in 4:10-cv-5060.
Other Orders Relevant to Carol Cline’s Action
These Orders are, for the most part, evidentiary rulings that
were made in the context of the bellwether cases that were tried
in this Court; these issues may arise again in Cline’s case.
1.
Order Denying Motion to Disqualify Expert Witness Dr.
Catherine Ortuno, Apr. 1, 2010.
ECF No. 231 in 4:08-md2004; 2010 WL 1416548.
Summary: Mentor sought to exclude the testimony of Dr.
Catherine Ortuno, who was an employee of a French Mentor
subsidiary called Porges.
While she was employed by
Porges, Dr. Ortuno and a colleague developed concerns about
the safety of ObTape and ultimately recommended that sales
of ObTape be stopped. The Court concluded that Dr. Ortuno
would be permitted to serve as an expert witness for
Plaintiffs but that she would not be permitted to offer any
testimony that would divulge privileged, attorney-client
communications.
2.
Order on Phase I Summary Judgment Motions and Admissibility
of Plaintiffs’ Experts, Apr. 22, 2010.
ECF No. 241 in
4:08-md-2004; 711 F. Supp. 2d 1348.
Summary: Mentor sought to exclude the testimony of
Plaintiffs’ experts under Federal Rule of Evidence 702.
Dr. Catherine Ortuno – motion denied; the Court found that
Dr. Ortuno’s methodology was sufficiently reliable.
General Causation Witnesses (Dr. Linda Brubaker, Dr.
Suzanne Bush, Dr. Michel Cosson, Dr. John Davis, Dr. James
Hiller, Dr. Mickey Karram, Dr. Kenneth Mitchell, Dr. Donald
Ostergard, Dr. William Porter, and Dr. Andrew Siegel) –
motion denied; the Court found that these experts’
methodology was sufficiently reliable.
7
Specific Causation Witnesses (Dr. Linda Brubaker, Dr.
Suzanne Bush, Dr. John Davis, Dr. James Hiller, Dr. Mickey
Karram, Dr. Kenneth Mitchell, and Dr. Mark Slack) – motion
denied; the Court found that these experts’ methodology was
sufficiently reliable.
Dr. George Samaras – motion granted in part and denied in
part; based on then-existing Rule 26 Report, the Court
concluded that Dr. Samaras would be permitted to testify on
general causation but not specific causation.
Dr. Ahmed El-Ghannam – motion denied; the Court found that
Dr. El-Ghannam’s opinions were sufficiently reliable.
Dr. Paul Ducheyne – motion granted in part and denied in
part ; based on then-existing Rule 26 Report, the Court
concluded that Dr. Ducheyne could not testify regarding
what caused degradation in ObTape but could testify that
Mentor should have done more testing based on Mentor’s
awareness that ObTape could degrade.
Dr. Arnold Lentnek – motion deferred pending Daubert
hearing. On May 12, 2010, the Court decided to permit Dr.
Lentnek’s testimony (ECF No. 301 in 4:08-md-2004).
3.
Order re Evidence Related to FDA Regulatory Process, Apr.
23, 2010. ECF No. 242 in 4:08-md-2004; 2010 WL 1734638.
Summary: Plaintiffs sought to exclude evidence related to
the FDA regulatory process.
Discussed basic rules
regarding evidence of FDA regulatory process.
Deferred
ruling until pretrial conference.
At the pretrial
conference on May 3, 2010, the Court granted the motion in
limine but stated that if Plaintiffs opened the door to the
FDA evidence, it could come in. (ECF No. 299 – Transcript
174:9-175:16.
4.
Order re Phase I Plaintiffs’ Experts, Apr. 27, 2010. ECF
No. 246 in 4:08-md-2004; 2010 WL 1727828.
Summary: Mentor sought to exclude the testimony of
Plaintiffs’ experts under Federal Rule of Evidence 702 and
based on relevance.
The motion was granted in part and
denied in part.
Dr. Ann Buchholtz – testimony not permitted.
Rabbit Study – testimony explaining rabbit study permitted,
but not testimony that rabbit study establishes that ObTape
is capable of causing similar conditions in humans.
Mentor’s Warnings to Physicians and the FDA – testimony may
be relevant to failure to warn claim, but Plaintiff must
establish relevance before eliciting this testimony.
8
5.
Order re Phase I Experts, Apr. 29, 2010.
ECF No. 282 in
4:08-md-2004; 2010 WL 1782272.
Summary: The parties sought to exclude expert testimony of
each other’s experts under Federal Rule of Evidence 702.
The motions were denied.
Dr. Michael Chernick (Plaintiffs’ statistician) – testimony
permitted.
Mentor’s Specific Causation Rebuttal Witnesses (Dr. Marta
Villarraga, Dr. Charles L. Secrest, Dr. A.W. Karchmer, Dr.
James M. Anderson) – testimony permitted.
Dr. Marta Villarraga (Mentor’s expert re Mentor’s conduct
in bringing ObTape to Market) – testimony permitted.
Mentor’s
Experts
regarding
Pore
Distribution
(Drs.
Villarraga and Clevenger) – testimony permitted.
6.
Phase I Bellwether Pretrial Conference Transcript (Day 1),
May 3, 2010. ECF No. 299 in 4:08-md-2004. Ruled from the
bench on several motions in limine. Significant Issues:
Cross Motions to Exclude Evidence re FDA Regulatory Process
(ECF Nos. 249 & 259) – Granted. Hr’g Tr. 164:11-175:16.
Plaintiffs’ Motion to Exclude “Complication Rates” (ECF
Nos. 250 & 251) – Denied. Hr’g Tr. 175:20-178:19.
7.
Phase I Bellwether Pretrial Conference Transcript (Day 2),
May 4, 2010. ECF No. 300 in 4:08-md-2004. Ruled from the
bench on several motions in limine. Significant Issue:
Mentor’s Motion to Exclude Evidence Adverse Event Reports
(ECF No. 273) – Denied, but reports must be redacted. Hr’g
Tr. 42:7-47:8.
8.
Order re Dr. Arnold Lentnek, May 12, 2010. ECF No. 301 in
4:08-md-2004.
Summary: Denied Mentor’s motion to exclude Dr. Lentnek,
concluding that Dr. Lentnek’s methodology was sufficiently
reliable.
9.
Order to “Tie Up Some Loose Ends” after Pretrial
Conference, May 18, 2010.
ECF No. 335 in 4:08-md-2004,
2010 WL 1998166.
Summary: addressed several issues.
Significantly, the
Court stated that it would permit recording of the
testimony of European witnesses so the recordings could be
used in later trials of MDL No. 2004 cases. Also addressed
the trial structure and concluded that trial should be
bifurcated (Phase 1: compensatory damages/punitive damages
entitlement; Phase 2: punitive damages amount). Note: part
9
of this Order was later vacated (see ECF 350 re continuing
duty to warn under Georgia law).
10.
Order re Subsequent Remedial Measure, May 20, 2010.
ECF
No. 341 in 4:08-md-2004, 2010 WL 2015146.
Summary: Concluded that Mentor’s decision to stop selling
ObTape is a subsequent remedial measure under Federal Rule
of Evidence 407, so evidence of this decision is not
admissible “to prove negligence, culpable conduct, a defect
in a product, a defect in a product's design, or a need for
a warning or instruction” but may be admitted for another
purpose.
Also concluded that Mentor’s introduction of a
new sling product, Aris, was not a subsequent remedial
measure under Federal Rule of Evidence 407.
11.
Order re Similar Complications, May 28, 2010. ECF No. 351
in 4:08-md-2004, 2010 WL 2196632.
Summary:
Explained
rationale
for
concluding
that
Plaintiffs’ evidence of other incidents were substantially
similar to Plaintiffs’ injuries.
12.
Order re Continuing Duty to Warn under Minnesota Law (in
Morey v. Mentor), June 3, 2013.
ECF No. 168 in 4:11-cv5065, ECF No. 672 in 4:08-md-2004, 2013 WL 2421007.
Summary: Concluded that Plaintiff Irene Morey could assert
a continuing duty to warn claim under Minnesota law, so
post-implant
evidence
of
safety
concerns
could
be
admissible to show notice of the harm and need for
additional warnings.
13.
Order re Post-Injury Evidence/Punitive Damages (in Morey v.
Mentor), June 12, 2013. ECF No. 671 in 4:08-md-2004.
Summary: Concluded that, under Minnesota law, certain postinjury evidence is admissible on the issue of punitive
damages.
14.
Order re Withdrawal of ObTape from the Market (in Morey v.
Mentor), June 12, 2013. ECF No. 179 in 4:11-cv-5065, ECF
No. 673 in 4:08-md-2004.
Summary: Reiterated that the withdrawal of ObTape from the
market was a subsequent remedial measure under Federal Rule
of Evidence 407.
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