Curtis v. Mentor Worldwide

Filing 53

ORDER granting 45 Motion for Summary Judgment; finding as moot 44 Motion to Exclude Expert Testimony of Larry W. Rumans, MD. 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-5074 (K. Curtis)

*

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.
implanted

Plaintiff

with

ObTape,

Kimberly
and

injuries caused by ObTape.
liability

action

against

she

Curtis

(“Mrs.

asserts

that

Curtis”)
she

was

suffered

Mrs. Curtis brought this product

Mentor,

contending

that

ObTape

had

design and/or manufacturing defects that proximately caused her
injuries.

Mrs.

Curtis

also

asserts

that

Mentor

did

not

adequately warn her physicians about the risks associated with
ObTape.
asserts

Mrs. Curtis’s husband, Thomas Curtis (“Mr. Curtis”)
a

derivative

claim

for

loss

of

consortium.

Mentor

contends that the Curtises’ claims are barred by the applicable
statutes of limitation.

For the reasons set forth below, the

Court agrees and Mentor’s Motion for Summary Judgment (ECF No.
45 in 4:11-cv-5074) is granted.

Mentor’s Motion to Exclude the

Expert Testimony of Larry W. Rumans, M.D. (ECF No. 44 in 4:11cv-5074) is now moot.
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 Mr. and Mrs. Curtis,
the record reveals the following.

Unless otherwise noted, the

facts are undisputed for purposes of Mentor’s summary judgment
motion.
Mr.
Carolina,
majority
Illinois.

and

Mrs.

but
of

Curtis

they

Mrs.

are

currently

previously

Curtis’s

lived

relevant

residents

in

medical

Illinois,
care

of

North

and

occurred

the
in

In 2004, Mrs. Curtis visited Dr. Brett Trockman, a

2

urologist,

because

incontinence.

she

was

experiencing

problems

with

Dr. Trockman initially prescribed medication to

treat Mrs. Curtis’s symptoms, but the medication did not help.
After

discussing

decided

to

her

undergo

options
a

with

Dr.

transobturator

Trockman,
sling

Mrs.

Curtis

procedure.

Dr.

Trockman implanted ObTape in Mrs. Curtis on February 8, 2005.
In August of 2005, Mr. Curtis told Mrs. Curtis that he noticed
some exposed ObTape in her vagina.

Mrs. Curtis went to Dr.

Trockman, who diagnosed an erosion and told Mrs. Curtis that the
erosion would need to be surgically corrected.

At the time,

Mrs. Curtis was under the impression that erosion was not a
common

occurrence

happened.

with

ObTape,

but

she

did

wonder

why

it

According to Mrs. Curtis, Dr. Trockman “didn’t seem

to really understand why it happened.”
ECF No. 45-5.

K. Curtis Dep. 129:3-7,

Dr. Trockman excised the exposed portion of Mrs.

Curtis’s ObTape.
Several months later, Mrs. Curtis began experiencing fevers
and sores while she was in New York for business.
went

to

the

infection.
[she]

was

148:20-22.

emergency

room

and

was

diagnosed

Mrs. Curtis

with

a

severe

At that point, Mrs. Curtis “knew [she] was sick and
sick

because

of

this

stuff,

this

mesh.”

Id.

at

Mrs. Curtis returned home to Illinois and visited

Dr. Trockman, who told Mrs. Curtis that her body was rejecting
the ObTape for some reason, but he did not know why.

3

Id. at

148:22-25.

Dr. Trockman performed a second excision surgery on

March 18, 2006.

Mrs. Curtis asserts that neither Dr. Trockman

nor another doctor told her that the ObTape was defective, and
she did not suspect that ObTape might be defective until she saw
a television ad regarding ObTape complications in 2010.
The Curtises filed this action on October 5, 2011.
generally

Compl.,

ECF

No.

1

in

4:11-cv-5074.

Mrs.

brought claims under both tort and contract theories.
theories

are

negligence,

strict

See
Curtis

Her tort

liability/defective

design,

strict liability/manufacturing defect, strict liability/failure
to warn, fraudulent misrepresentation, fraudulent concealment,
and

negligent

misrepresentation.

Mrs.

Curtis’s

contract

theories are breach of implied warranties and breach of express
warranties.

Mr.

Curtis’s

claims

are

based

on

a

loss

of

consortium theory.
DISCUSSION
The Judicial Panel on Multidistrict Litigation transferred
the Curtises’ diversity action from the United States District
Court for the Northern District of Illinois to this Court for
pretrial

proceedings.

choice-of-law

rules

Therefore,
of

the

Court

Illinois,

the

transferor

determine which state law controls.

must

apply

the

forum,

to

Chang v. Baxter Healthcare

Corp., 599 F.3d 728, 732 (7th Cir. 2010); see also Murphy v.
Fed. Deposit Ins. Corp., 208 F.3d 959, 965 (11th Cir. 2000)

4

(“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 case, the Curtises’ injuries occurred in Illinois,
and

Illinois

Therefore,
statutes

is

the

of

the

forum

Curtises

limitation

where

and

apply

they

Mentor
to

the

brought
agree

their

that

Curtises’

action.

Illinois’s

claims.

See

Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893, 904-09 (Ill.
2007)

(explaining

Illinois

choice-of-law

analysis

and

noting

that the law of the state where the injury occurred usually
applies unless another state has a more significant relationship
to

the

dispute).

Neither

side

has

suggested

that

another

state’s law applies, and the Court will therefore apply Illinois
law and determine whether the Curtises’ claims are barred under
the Illinois statutes of limitation.
The parties agree that Mrs. Curtis’s tort claims and Mr.
Curtis’s loss of consortium claims are subject to a two-year
statute

of

limitations.

See

735

Ill.

Comp.

Stat.

5/13-202

(personal injury); id. § 5/13-203 (loss of consortium-injury to
person).

The parties also agree that Mrs. Curtis’s breach of

warranty

claims

limitations.

are

subject

to

a

four-year

statute

See 810 Ill. Comp. Stat. 5/2-725(1)-(2).

5

of

The only

dispute between the parties relates to when the Curtises’ claims
accrued.
I.

Tort Claims
Under Illinois law, the statute of limitations for personal

injury actions is two years after the cause of action accrues.
735 Ill. Comp. Stat. 5/13-202.

A loss of consortium claim must

“be commenced within the same period of time as actions for
damages

for

injury

to

such

other

person.”

Id.

§

5-13-203.

Under Illinois law, a personal injury cause of action accrues
when the “plaintiff knows or reasonably should know that he has
been

injured

and

that

his

injury

was

wrongfully

caused.”

Castello v. Kalis, 816 N.E.2d 782, 788 (Ill. App. Ct. 2004)
(internal
caused’

quotation

does

not

marks
mean

omitted).

knowledge

“The

of

a

phrase

‘wrongfully

specific

defendant’s

negligent conduct or knowledge of the existence of a cause of
action.”
“Rather,

Id.
the

at

term

789

(internal

refers

to

quotation

when

an

marks

injured

omitted).

party

becomes

possessed of sufficient information concerning his injury and
its cause to put a reasonable person on inquiry to determine
whether

actionable

conduct

quotation marks omitted).

is

involved.”

Id.

(internal

The Illinois Supreme Court emphasized

that this rule “is not the same as a rule which states that a
cause of action accrues when a person knows or should know of
both the injury and the defendants’ negligent conduct.

6

Not only

is such a standard beyond the comprehension of the ordinary lay
person to recognize, but it assumes a conclusion which must
properly await legal determination.”

Nolan v. Johns-Manville

Asbestos, 421 N.E.2d 864, 868 (Ill. 1981).

When a plaintiff

“knows or reasonably should know both of his injury and that it
was wrongfully caused, the burden is upon the injured person to
inquire

further

as

to

the

existence

of

a

cause

of

action.”

Castello, 816 N.E.2d at 789 (internal quotation marks omitted);
accord Nelson v. Jain, 526 F. Supp. 1154, 1157 (N.D. Ill. 1981)
(noting that a plaintiff may not make herself an “ostrich . . .
blinding [herself] to the obvious inferences from plain facts”).
In Aspergren v. Howmedica, Inc., 472 N.E.2d 822 (Ill. App.
Ct.

1984),

liability
after

for

claim

the

example,
against

implant

the

the

became

plaintiff

asserted

manufacturer

fractured.

of

The

her

a

product

hip

implant

Illinois

Appellate

Court found that a fact question existed on the question of when
the plaintiff’s claim accrued, but the court suggested that it
accrued, at the latest, when the implant was removed and the
plaintiff had an “opportunity to examine the fractured implant
and determine the cause of its failure.”

Id. at 824; see also

Mele v. Howmedica, Inc., 808 N.E.2d 1026, 1035-36 (Ill. App. Ct.
2004) (finding that product liability cause of action related to
medical device used in hip replacement surgery accrued when the
plaintiff’s

doctor

suggested

removing

7

the

device

because

it

could

be

causing

the

plaintiff’s

pain),

overruled

on

other

grounds by Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 258-59
(Ill. 2007); cf. Berry v. G.D. Searle & Co., 309 N.E.2d 550, 557
(Ill.

1974)

(finding

that

the

plaintiff’s

product

liability

action accrued when she suffered a stroke, not when she later
discovered that her birth control pills might be connected to
the stroke).
Mrs. Curtis argues that her tort causes of action against
Mentor did not accrue until she knew of her injury, knew the
injury

was

defective.

caused
Mrs.

by

ObTape,

Curtis,

Illinois

authority

that

Illinois

Supreme

Court

and

knew

however,

supports
has

that

pointed

such

ObTape
the

a

rule.

emphasized

that

might

Court

to

Rather,
the

be
no
the

Illinois

discovery rule “is not the same as a rule which states that a
cause of action accrues when a person knows or should know of
both the injury and the defendants’ negligent conduct.”
421 N.E.2d at 868.

Nolan,

Here, Mrs. Curtis knew by March of 2006 that

her body was rejecting the ObTape and that she had suffered a
severe infection as a result.

See K. Curtis Dep. 148:20-22 (“I

just knew I was sick and I was sick because of this stuff, this
mesh.”).

At that time, Mrs. Curtis had sufficient notice that

her injuries were related to ObTape so that she could begin an
investigation to determine whether those injuries were caused by
a problem with ObTape, a problem with the implantation surgery,

8

or some other problem.

For these reasons, the Court finds that

no genuine fact dispute exists as to when Mrs. Curtis’s tort
claims accrued.
latest.

Her tort claims accrued in March of 2006 at the

Mrs. Curtis did not file her Complaint until October 5,

2011—more than

two

years after her cause of

action accrued.

Therefore, her tort claims are barred by the applicable statute
of limitations.

Mr. Curtis’s loss of consortium claims are

likewise barred.

Mentor is entitled to summary judgment on

these claims.1
II.

Breach of Warranty Claims
Under Illinois law, a breach of warranty claim “accrues

when the breach occurs, regardless of the aggrieved party’s lack
of knowledge of the breach.”
[hereinafter

§ 2-725(2)]

“A breach of warranty occurs when

tender of delivery is made.”
warranty
conform

obligates
to

the

model. . . .”

.

.

810 Ill. Comp. Stat. 5/2-725(2)

.

Id.
the

affirmation,

“In other words, an express

seller

promise,

to

deliver

description,

goods

that

sample

or

Mydlach v. DaimlerChrysler Corp., 875 N.E.2d

1047, 1058 (Ill. 2007).

“If the seller delivers nonconforming

goods, the warranty is breached at that time.

1

Even if the buyer

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 Illinois 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).

9

is unaware that the goods, as delivered, do not conform to the
seller’s affirmation, promise, description, sample or model, the
warranty

has

“discovery

been

rule”

breached.”
exception

Id.
this

to

There

is

general

a

rule:

statutory
“where

a

warranty explicitly extends to future performance of the goods
and

discovery

of

the

breach

must

await

the

time

of

such

performance[,] the cause of action accrues when the breach is or
should have been discovered.”

§ 2-725(2).

Mrs. Curtis, relying on a 1971 federal district court case,
argues that the statute of limitations for warranty cases begins
on the date the product’s defect is discovered.

See Klondike

Helicopters, Ltd. v. Fairchild Hiller Corp., 334 F. Supp. 890,
893 (N.D. Ill. 1971) (“It seems reasonable to expect a warranty
of [merchantability] to continue beyond the tender of delivery
and extend for the life of the product.”).
however,

have

rejected

this

approach.

Illinois courts,

Illinois

courts

have

concluded that “[t]he mere expectation that a product’s warranty
extends for the life of the product does not delay the point at
which the statute of limitations commences to run.”

Moorman

Mfg. Co. v. Nat’l Tank Co., 435 N.E.2d 443, 454 (Ill. 1982).
Though § 2-725(2) does provide a “discovery rule” for warranty
cases,

the

explicitly

discovery
extends

to

rule
future

only

applies

performance,”

“where
and

a

the

warranty
statute’s

“‘except’ clause has been narrowly construed, with emphasis on

10

‘explicitly.’”
439,

442

omitted).

Nelligan v. Tom Chaney Motors, Inc., 479 N.E.2d

(Ill.

App.

Ct.

1985)

(internal

quotation

marks

Therefore, the discovery rule exception of § 2-725(2)

does not apply in implied warranty cases.

Id.

The discovery

rule of § 2-725(2) also does not apply in express warranty cases
unless the warranty “explicitly” extends to future performance.
Moorman Mfg. Co., 435 N.E.2d at 454.

A warranty that simply

states

to

what

the

product

is

designed

do—for

example,

a

statement that a grain storage tank is “designed to withstand 60
lbs. per bushel grain and 100 m.p.h. winds”—is not an explicit
warranty of future performance.

Id. at 453-54.

Rather, there

must be some reference to future time in the warranty to trigger
the discovery rule.

Ridle v. Sprayrite Mfg. Co., 555 N.E.2d

1272, 1274 (Ill. App. Ct. 1990).
Here, Mrs. Curtis did not point the Court to evidence of an
express warranty for ObTape that explicitly extends to future
performance.

Therefore, the discovery rule of § 2-725(2) does

not apply, and the breach of warranty occurred no later than the
date Mrs. Curtis was implanted with ObTape—February 8, 2005.
Mrs. Curtis filed this action more than four years later, on
October 5, 2011, so her warranty claims are time-barred, and
Mentor is entitled to summary judgment on these claims.

11

CONCLUSION
As discussed above, the Curtises’ claims are time-barred,
and Mentor’s Motion for Summary Judgment (ECF No. 45 in 4:11-cv5074)

is

granted.

Mentor’s

Motion

to

Exclude

the

Expert

Testimony of Larry W. Rumans, M.D. (ECF No. 44 in 4:11-cv-5074)
is now moot.

IT IS SO ORDERED, this 11th day of February, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

12