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)

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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

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