Curtis v. Mentor Worldwide
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
IN RE MENTOR CORP. OBTAPE
TRANSOBTURATOR SLING PRODUCTS
MDL Docket No. 2004
4:11-cv-5074 (K. Curtis)
O R D E R
(“ObTape”), which was used to treat women with stress urinary
injuries caused by ObTape.
Mrs. Curtis brought this product
design and/or manufacturing defects that proximately caused her
adequately warn her physicians about the risks associated with
Mrs. Curtis’s husband, Thomas Curtis (“Mr. Curtis”)
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
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.
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
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
In 2004, Mrs. Curtis visited Dr. Brett Trockman, a
Dr. Trockman initially prescribed medication to
treat Mrs. Curtis’s symptoms, but the medication did not help.
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
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.
Several months later, Mrs. Curtis began experiencing fevers
and sores while she was in New York for business.
At that point, Mrs. Curtis “knew [she] was sick and
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.
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.
brought claims under both tort and contract theories.
strict liability/manufacturing defect, strict liability/failure
to warn, fraudulent misrepresentation, fraudulent concealment,
theories are breach of implied warranties and breach of express
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
determine which state law controls.
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)
(“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,
Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893, 904-09 (Ill.
that the law of the state where the injury occurred usually
applies unless another state has a more significant relationship
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
(personal injury); id. § 5/13-203 (loss of consortium-injury to
The parties also agree that Mrs. Curtis’s breach of
See 810 Ill. Comp. Stat. 5/2-725(1)-(2).
dispute between the parties relates to when the Curtises’ 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
Under Illinois law, a personal injury cause of action accrues
when the “plaintiff knows or reasonably should know that he has
Castello v. Kalis, 816 N.E.2d 782, 788 (Ill. App. Ct. 2004)
negligent conduct or knowledge of the existence of a cause of
possessed of sufficient information concerning his injury and
its cause to put a reasonable person on inquiry to determine
quotation marks omitted).
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.
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
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.
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
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
action accrued when she suffered a stroke, not when she later
discovered that her birth control pills might be connected to
Mrs. Curtis argues that her tort causes of action against
Mentor did not accrue until she knew of her injury, knew the
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.
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
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,
or some other problem.
For these reasons, the Court finds that
no genuine fact dispute exists as to when Mrs. Curtis’s tort
Her tort claims accrued in March of 2006 at the
Mrs. Curtis did not file her Complaint until October 5,
years after her cause of
Therefore, her tort claims are barred by the applicable statute
Mr. Curtis’s loss of consortium claims are
Mentor is entitled to summary judgment on
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.”
“A breach of warranty occurs when
tender of delivery is made.”
model. . . .”
810 Ill. Comp. Stat. 5/2-725(2)
“In other words, an express
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.
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
is unaware that the goods, as delivered, do not conform to the
seller’s affirmation, promise, description, sample or model, the
warranty explicitly extends to future performance of the goods
performance[,] the cause of action accrues when the breach is or
should have been discovered.”
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.
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.”).
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.”
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
“‘except’ clause has been narrowly construed, with emphasis on
Nelligan v. Tom Chaney Motors, Inc., 479 N.E.2d
Therefore, the discovery rule exception of § 2-725(2)
does not apply in implied warranty cases.
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
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.
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
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.
As discussed above, the Curtises’ claims are time-barred,
and Mentor’s Motion for Summary Judgment (ECF No. 45 in 4:11-cv5074)
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
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