Morey v. Mentor Corporation
Filing
179
ORDER Regarding Subsequent Remedial Measure. Ordered by Judge Clay D. Land on 06/12/2013. (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 No.
4:11-cv-5065 (I. Morey)
*
O R D E R
Persistence
aggressive
is
admirable
stubbornness.
regarding
the
from
market
the
an
admissibility
is
quality—until
Plaintiff’s
of
counsel’s
Defendant’s
approaching
the
it
removal
latter.
The
becomes
arguments
of
ObTape
Court
has
clearly ruled during the first phase of this MDL proceeding that
the removal of ObTape from the market is a subsequent remedial
measure for purposes of Federal Rule of Evidence 407.
2010 Order, ECF No. 341 in 4:08-md-2004.
that
ruling’s
applicability
pretrial conference.
ECF No. 109.
to
this
May 20,
The Court confirmed
specific
case
at
the
Pretrial Conference Hr’g Tr. 140:15-23,
The Court did leave open the possibility that
such evidence could be admitted if Defendant opened the door.
Id.
It is this sliver of hope that persistent counsel latches
onto in support of his argument that the evidence should now be
admitted.
Counsel
argues
that
Defendant
has
created
the
impression with the jury that the FDA has approved this product,
has the authority to remove it from the market, and has allowed
it to remain on the market to this day.
argument.
The
evidence
regarding
The Court rejects this
FDA
clearance
of
ObTape
pursuant to the 510(k) preclearance process focused on clearing
ObTape
for
States.
sale
No
when
it
specific
was
first
evidence
introduced
was
in
presented
the
that
United
the
FDA
continued to monitor it and determined that it should remain on
the market.
Moreover, the Court gave a limiting instruction to
the jury describing the 510(k) clearance process, specifically
explaining
that
determination
such
that
the
clearance
product
by
was
the
safe
FDA
and
was
not
effective,
a
but
instead was a finding that ObTape was substantially equivalent
to another product that was already on the market.
Defendant
has not yet opened the door for the admissibility of the removal
of ObTape from the market.
The
Court
also
rejects
counsel’s
argument
that
the
withdrawal of ObTape from the market should be admitted for
punitive
damages
purposes.
Federal
Rule
of
Evidence
407
specifically prevents the introduction of subsequent remedial
measures to prove “negligence,” “culpable conduct,” “a defect in
a
product
or
instruction.”
its
design,”
or
Fed. R. Evid. 407.
2
“a
need
for
warning
or
Accordingly, it cannot be
admitted to show that Defendant’s “culpable conduct” authorizes
punitive damages.1
IT IS SO ORDERED, this 12th day of June, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
1
Although it may be a bit unorthodox to enter evidentiary rulings in
writing during a jury trial, the Court finds it necessary here given
the Court’s apparent inability to make its rulings on these issues
clear orally and given the likelihood that these issues may recur
during other trials in this MDL proceeding.
3
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