Freeland v. Mentor Worldwide LLC
Filing
65
ORDER granting 57 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 02/11/2013. (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-5070 (A. Freeland)
*
O R D E R
Defendant
suburethral
Mentor
sling
Worldwide
product
LLC
called
(“Mentor”)
ObTape
developed
Transobturator
a
Tape
(“ObTape”), which was used to treat women with stress urinary
incontinence.
Plaintiff
implanted
with
injuries
caused
liability
ObTape,
by
action
Alice
and
she
ObTape.
against
Freeland
asserts
Freeland
Mentor,
(“Freeland”)
that
she
brought
contending
this
that
was
suffered
product
ObTape
had
design and/or manufacturing defects that proximately caused her
injuries.
warn
her
Mentor
Freeland also asserts that Mentor did not adequately
physicians
contends
about
that
the
risks
Freeland’s
claims
applicable statutes of limitation.
below,
the
Court
agrees,
and
associated
are
with
barred
ObTape.
by
the
For the reasons set forth
Mentor’s
Motion
for
Summary
Judgment (ECF No. 57 in 4:11-cv-5070) is granted.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
In determining whether a
genuine
Fed. R.
dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party=s favor.
U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc., 477
A fact is material if it is relevant or
necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Id.
FACTUAL BACKGROUND
Viewed in the light most favorable to Freeland, the record
reveals the following.
Unless otherwise noted, the facts are
undisputed for purposes of Mentor’s summary judgment motion.
Freeland
is a resident of
related
Carolina.
In 2004, Freeland visited her urologist, Dr. William
Bogache,
because
she
Freeland’s
was
claims
All medical
treatment
incontinence.
to
North Carolina.
occurred
experiencing
in
problems
South
with
After discussing her options with Dr. Bogache,
Freeland decided to undergo a transobturator sling procedure.
Dr. Bogache implanted ObTape in Freeland on December 1, 2004.
After the surgery, Freeland developed an infection and began to
experience
vaginal
discharge
and
problems with sexual intercourse.
2
other
symptoms,
including
In March of 2005, Dr. Bogache
examined Freeland and found a vaginal erosion of the ObTape.
conducted a partial excision on April 6, 2005.
that
Dr.
Bogache
unattached
Though
and
told
was
Freeland’s
Freeland
causing
that
her
incontinence
her
improved
It is undisputed
ObTape
problems
with
had
become
intercourse.
somewhat
partial excision, her discharge did not.
after
the
She was referred to
another urologist, Dr. Ross Rames, for additional treatment.
September
2005,
Dr.
Rames
erosion of the ObTape.
surgery
in
November
diagnosed
He
Freeland
with
In
another
Dr. Rames performed a partial excision
2005.
Freeland
excision surgery in October 2006.
underwent
an
additional
It is undisputed that after
that surgery, Freeland did not experience any vaginal discharge
she attributes to ObTape, though she does attribute continuing
problems with incontinence and diarrhea to ObTape.
While Freeland was experiencing vaginal discharge symptoms,
she
conducted
one
internet
search
regarding
bladder
sling
procedures because she believed that something may have gone
wrong with the “procedure” and not the ObTape itself.
Dep.
77:1-5,
internet
80:16-18,
search
ECF
reassured
No.
60-3.
Freeland
The
because
Freeland
results
the
of
the
statistics
suggested that the complication rate for bladder sling surgery
was
low.
Freeland
Sometime
changed
her
later,
mind
without
and
began
statistics she had seen were false.
3
any
additional
to
believe
Id. at 67:6-13.
research,
that
the
Freeland
testified that she changed her mind about the statistics at
least five years before her deposition, which was taken on April
5, 2012.
Id. at 68:14-19.
Freeland nonetheless asserts that
she did not suspect that ObTape might be defective until she saw
a television ad regarding ObTape complications in 2011.
Freeland
filed
her
Complaint
on
August
19,
2011.
See
generally Compl., ECF No. 1 in 4:11-cv-5070.
Freeland brought
claims under both tort and contract theories.
Her tort theories
are
negligence,
strict
liability/manufacturing
warn,
fraudulent
liability/defective
defect,
strict
misrepresentation,
design,
strict
liability/failure
fraudulent
to
concealment,
negligent misrepresentation, and violation of the South Carolina
Unfair Trade Practices Act.
Her contract theories are breach of
implied warranties and breach of express warranties.
DISCUSSION
The Judicial Panel on Multidistrict Litigation transferred
Freeland’s
diversity
Court
the
for
pretrial
action
District
proceedings.
of
from
South
the
United
Carolina
Therefore,
the
to
Court
States
District
this
Court
for
must
apply
the
choice-of-law rules of South Carolina, the transferor forum, to
determine which state law controls.
See Toll Bros., Inc. v.
Dryvit Sys., Inc., 432 F.3d 564, 568 n.4 (4th Cir. 2005) (noting
that law of transferor court must be applied in multidistrict
litigation case); see also Murphy v. Fed. Deposit Ins. Corp.,
4
208 F.3d 959, 965 (11th Cir. 2000) (“Our system contemplates
differences between different states’ laws; thus a multidistrict
judge asked to apply divergent state positions on a point of law
would face a coherent, if sometimes difficult, task.”) (internal
quotation marks omitted).
In
this
action,
Freeland
and
Mentor
agree
that
South
Carolina’s statutes of limitation apply to Freeland’s claims.
“Under traditional South Carolina choice of law principles, the
substantive law governing a tort action is determined by the lex
loci
delicti,
occurred.”
the
law
of
the
state
in
which
the
injury
Boone v. Boone, 546 S.E.2d 191, 193 (S.C. 2001). The
law of the forum state must be applied to determine procedural
matters.
App.
Nash v. Tindall Corp., 650 S.E.2d 81, 83 (S.C. Ct.
2007).
In
this
case,
Freeland
acknowledges
that
her
injuries occurred in South Carolina, and South Carolina is the
forum
where
she
brought
her
action.
Therefore,
whether
a
statute of limitations is considered substantive or procedural
under South Carolina law, it is clear that South Carolina law
must be applied to Freeland’s claims.
whether
Freeland’s
claims
are
barred
The remaining question is
under
South
Carolina’s
statutes of limitation.
The parties agree that Freeland’s tort claims are subject
to a three-year statute of limitations, S.C. Code Ann. § 15-3530, while her warranty claims are subject to a six-year statute
5
of limitations, S.C. Code Ann. § 36-2-725.
The only dispute
between the parties relates to when Freeland’s claims arose.
Under
South
Carolina’s
discovery
rule,
“the
statute
of
limitations begins to run from the date the claimant knew or
should have known that, by the exercise of reasonable diligence,
a cause of action exists.”
Holmes v. Nat’l Serv. Indus., Inc.,
717 S.E.2d 751, 753 (S.C. 2011); accord S.C. Code Ann. § 36-2725(2) (“A cause of action accrues for breach of warranty when
the breach is or should have been discovered.”).
“The date on
which discovery of the cause of action should have been made is
an objective, rather than subjective, question.”
Bayle v. S.C.
Dep’t of Transp., 542 S.E.2d 736, 740 (S.C. Ct. App. 2001).
“In
other words, whether the particular plaintiff actually knew he
had a claim is not the test. Rather, courts must decide whether
the
circumstances
of
the
case
would
put
a
person
of
common
knowledge and experience on notice that some right of his has
been invaded, or that some claim against another party might
exist.”
Id. (internal quotation marks omitted).
Where there is no conflicting evidence “as to whether a
claimant knew or should have known he had a cause of action,”
the Court may resolve the issue as a matter of law.
Maher v.
Tietex Corp., 500 S.E.2d 204, 207 (S.C. Ct. App. 1998); see also
Barnes v. Schering Corp., 16 F.3d 408, No. 93-1638, 1994 WL
20110, at *2 (4th Cir. Jan. 26, 1994) (per curiam) (applying
6
South Carolina law).
evaluated
the
claims
In Barnes, for example, the Fourth Circuit
of
a
plaintiff
who
claimed
that
she
suffered injuries as a result of her mother’s ingestion of the
drug diethylstilbestrol (DES) while she was pregnant with the
plaintiff.
The plaintiff was aware that her mother had taken
DES; the plaintiff was aware that she had numerous gynecological
problems;
and
the
plaintiff’s
doctor
discussed
with
plaintiff the association between her problems and DES.
*1.
the
Id. at
The Fourth Circuit Court of Appeals found that only one
conclusion
could
be
drawn
from
the
record
evidence:
the
plaintiff knew or through the exercise of reasonable diligence
should have known that she had a cause of action following the
discussion
with
her
doctor
because
that
discussion
“was
sufficient to place her on notice of the possibility that her
problems were caused by DES.”
Id. at *2; see Bayle, 542 S.E.2d
at 741 (finding that the plaintiff’s negligence cause of action
against the transportation department accrued shortly after his
wife’s fatal car accident because he knew that his wife lost
control of her car when she drove into a pool of water on the
expressway and was therefore on notice that the accident was
potentially
caused
by
the
transportation
department’s
negligence); Young v. S.C. Dep’t of Corr., 511 S.E.2d 413, 416
(S.C. Ct. App. 1999) (finding that inmate should have been aware
that prison officials’ delay in obtaining medical treatment may
7
have
exacerbated
his
symptoms
when
two
separate
doctors
expressed concern about the delay); see also Snell v. Columbia
Gun Exch., Inc., 278 S.E.2d 333, 335 (S.C. 1981) (per curiam)
(finding that pistol owner was on notice of a possible defect in
the
pistol
he
purchased
when
the
pistol
“accidentally
and
unexplainedly” discharged).
Freeland argues that her cause of action against Mentor did
not accrue until she knew of her injury, knew the injury was
caused
by
ObTape,
Freeland,
however,
authority
that
and
interpreting
knew
pointed
supports
South
that
the
such
Carolina
ObTape
Court
a
law
might
be
no
South
to
rule.
defective.
Rather,
indicate
that
a
Carolina
the
cases
plaintiff’s
product liability cause of action accrues when the plaintiff has
information sufficient to place her on notice of the possibility
that her injury was caused by a certain product.
1994 WL 20110, at *2.
her
ObTape
symptoms.
had
At
Here, Freeland knew in April of 2005 that
become
that
E.g., Barnes,
unattached
time,
a
person
and
of
was
causing
common
certain
knowledge
and
experience in Freeland’s position would have been on notice that
her injuries may be related to ObTape and would have been able
to begin an investigation to determine whether those injuries
were
caused
by
a
problem
with
ObTape,
a
implantation surgery, or some other problem.
problem
with
the
For these reasons,
the Court finds that no genuine fact dispute exists as to when
8
Freeland’s claims accrued.
Her claims accrued in April of 2005.
Freeland did not file her Complaint until August 19, 2011—more
than six years after her cause of action accrued.
both
her
tort
claims
and
her
breach
of
warranty
Therefore,
claims
are
barred by the applicable statutes of limitation, and Mentor is
entitled to summary judgment on Freeland’s claims.1
CONCLUSION
For
the
reasons
set
forth
above,
Mentor’s
Motion
for
Summary Judgment (ECF No. 57 in 4:11-cv-5070) is granted.
IT IS SO ORDERED, this 11th day of February, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
1
To the extent that this holding may appear to be inconsistent with
the Court’s previous holding under Georgia law in In re Mentor Corp.
ObTape Transobturator Sling Products Liability Litigation, 711 F.
Supp. 2d 1348 (M.D. Ga. 2010), the Court finds that South Carolina law
has not been as broadly interpreted as the Eleventh Circuit seemed to
interpret Georgia law in Welch v. Celotex Corp., 951 F.2d 1235 (11th
Cir. 1992).
South Carolina law makes it clear that the statute of
limitations begins to run when a person of reasonable diligence should
have made a connection between the product and her injuries, not when
the person determines that a defendant’s conduct which caused the
injuries may have been wrongful.
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?