Morey v. Mentor Corporation
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
IN RE MENTOR CORP. OBTAPE
TRANSOBTURATOR SLING PRODUCTS
MDL Docket No. 2004
4:11-cv-5065 (I. Morey)
O R D E R
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.
ECF No. 109.
The Court confirmed
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.
It is this sliver of hope that persistent counsel latches
onto in support of his argument that the evidence should now be
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.
The Court rejects this
pursuant to the 510(k) preclearance process focused on clearing
continued to monitor it and determined that it should remain on
Moreover, the Court gave a limiting instruction to
the jury describing the 510(k) clearance process, specifically
instead was a finding that ObTape was substantially equivalent
to another product that was already on the market.
has not yet opened the door for the admissibility of the removal
of ObTape from the market.
withdrawal of ObTape from the market should be admitted for
specifically prevents the introduction of subsequent remedial
measures to prove “negligence,” “culpable conduct,” “a defect in
Fed. R. Evid. 407.
Accordingly, it cannot be
admitted to show that Defendant’s “culpable conduct” authorizes
IT IS SO ORDERED, this 12th day of June, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
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.
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