Riley et al v. Mentor Worldwide LLC
Filing
49
ORDER granting 43 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 02/14/2013. (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-5075 (S. Riley)
*
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
ObTape,
with
Sharon
liability
action
against
asserts
that
Mrs.
injuries caused by ObTape.
(“Mrs.
she
and
Riley
Riley
Mentor,
Riley”)
she
was
suffered
brought this product
contending
that
ObTape
had
design and/or manufacturing defects that proximately caused her
injuries.
Mrs.
Riley
also
asserts
that
Mentor
did
not
adequately warn her physicians about the risks associated with
ObTape.
asserts
Mrs.
a
Riley’s
derivative
husband,
claim
for
Leland
loss
of
Riley
(“Mr.
consortium.
Riley”)
Mentor
contends that Mr. and Mrs. Riley’s tort claims must be merged
into a single claim under the Indiana Product Liability Act.
Mentor
further
attempting
claims fail.
to
contends
assert
that
separate
to
the
extent
contract-based
Mrs.
Riley
claims,
is
those
For the reasons set forth below, the Court agrees,
and Mentor’s motion for partial summary judgment (ECF No. 43 in
4:11-cv-5075) 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.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
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
record reveals the following.
favorable
to
the
Rileys,
the
Unless otherwise noted, the facts
are undisputed for purposes of Mentor’s summary judgment motion.
Mr.
and
Mrs.
Riley
are
residents
of
Indiana,
and
all
medical treatment related to their claims occurred in Indiana.
Mrs. Riley began suffering from incontinence in the late 1990s.
In 2003, Mrs. Riley consulted with her urologist, Dr. Kannan
Manickam, regarding her symptoms.
2
After discussing her options
with
Dr.
Manickam,
Mrs.
Riley
transobturator sling procedure.
decided
to
undergo
a
Dr. Manickam implanted ObTape
in Mrs. Riley on February 13, 2004.
During a follow-up visit after the surgery, Dr. Manickam
noticed a small vaginal erosion of the ObTape, but he did not
see any signs of an infection.
According to Mrs. Riley, Dr.
Manickam did not tell Mrs. Riley about the erosion.
Dep. 93:12-22, ECF No. 44-5.
S. Riley
At some point, Mrs. Riley began to
experience some bleeding, and she visited her OB/GYN, Dr. Jason
Heaton.
Dr.
Heaton
diagnosed
Mrs.
Riley
with
high
grade
cervical dysplasia, and he performed a procedure to treat it on
January
23,
2006.
During
the
procedure,
palpable tape below Mrs. Riley’s urethra.
Dr.
Heaton
noted
Dr. Heaton told Mrs.
Riley that her bladder was pushing through the sling and that
the ObTape would need to be removed.
During the same timeframe,
Mrs. Riley attempted to conduct internet research on bladder
slings.
In March of 2006, Dr. Manickam surgically removed Mrs.
Riley’s ObTape.
Mrs. Riley asserts that she did not suspect
that ObTape might be defective until she saw a television ad
regarding ObTape complications in 2011.
The
Rileys
filed
their
Complaint
in
the
United
States
District Court for the Northern District of Illinois on October
13, 2011.
See generally Compl., ECF No. 1 in 4:11-cv-5075.
Mrs.
asserts
Riley
tort-based
claims
3
for
negligence,
strict
liability/defective
defect,
strict
design,
liability/failure
misrepresentation,
fraudulent
misrepresentation.
claims for
warranty.
strict
Mrs.
liability/manufacturing
to
warn,
concealment,
Riley
also
breach of implied warranty
fraudulent
and
asserts
negligent
contract-based
and breach of express
Mr. Riley asserts a claim for loss of consortium.
DISCUSSION
The Judicial Panel on Multidistrict Litigation transferred
the Rileys’ diversity action from the United States District
Court for the Northern District of Indiana to this Court for
pretrial
proceedings.
choice-of-law
rules
Therefore,
of
the
Court
Indiana,
the
transferor
determine which state law controls.
must
apply
forum,
the
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)
(“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 Rileys’ injuries occurred in Indiana, and
Indiana
is
the
forum
where
they
brought
their
action.
The
Rileys and Mentor agree that Indiana law applies to the Rileys’
claims.
See Alli v. Eli Lilly & Co., 854 N.E.2d 372, 376 (Ind.
Ct. App. 2006) (discussing Indiana’s choice-of-law analysis and
4
noting that the substantive law of the state where the injury
occurred generally applies).
Neither side has suggested that
another state’s law applies, and the Court will therefore apply
Indiana law.
Indiana’s Product Liability Act governs all actions brought
by a consumer against a manufacturer “for physical harm caused
by a product[,] regardless of the substantive legal theory or
theories upon which the action is brought.”
1-1.
Ind. Code § 34-20-
Mentor asserts, and the Rileys agree, that the Rileys’
tort-based claims should be merged into a single statutory claim
under
the
following
claim:
Indiana
claims
Product
will
negligence,
strict
liability/manufacturing
warn,
fraudulent
be
Liability
merged
and
Act.
considered
liability/defective
defect,
strict
misrepresentation,
Therefore,
as
the
a
single
design,
strict
liability/failure
fraudulent
to
concealment,
negligent misrepresentation, and loss of consortium.
Turning to Mrs. Riley’s contract-based claims for breach of
warranty, Mentor argues that these claims fail for two reasons.
First, Mentor contends that Mrs. Riley cannot establish vertical
privity as required under Indiana law.
Mentor, however, raised
this argument for the first time in its reply brief, so it is
not properly before the Court.
United States v. Oakley, 744
F.2d 1553, 1556 (11th Cir. 1984).
Second, Mentor asserts that
Mrs. Riley’s warranty claims are actually tort-based claims, not
5
contract-based claims.
Def.’s Mem. in Supp. of Mot. for Summ.
J. 4 n.3, ECF No. 43-1.
Mentor further suggests that even if
the warranty claims are considered to be contract-based claims,
they are barred by the applicable statute of limitations.
Id.
Though Mentor only raised these arguments in a footnote to its
summary judgment brief, Mrs. Riley did respond to the arguments
in a footnote.
these
It is perplexing that the parties chose to bury
potentially
Notwithstanding
dispositive
this
stealth
issues
approach,
in
these
footnotes.
issues
did
not
escape the Court’s attention, and the Court will address them.
As noted above, Indiana’s Product Liability Act governs all
actions
brought
physical
harm
by
a
consumer
caused
by
a
against
a
product[,]
manufacturer
regardless
“for
of
the
substantive legal theory or theories upon which the action is
brought.”
Ind. Code § 34-20-1-1.
Products
Liability
Act
did
Nonetheless, “adoption of the
not
vitiate
the
provisions
of”
Indiana’s Uniform Commercial Code.
Hitachi Const. Mach. Co. v.
AMAX
465
Coal
Co.,
737
N.E.2d
460,
(Ind.
Ct.
App.
2000)
(internal quotation marks omitted).
“The Product Liability Act
governs
in
product
liability
actions
which
the
theory
of
liability is negligence or strict liability in tort, while the
UCC
governs
warranty.”
contract
cases
which
are
based
on
Id. (internal quotation marks omitted).
breach
of
“If a cause
of action is actually one for negligence or strict liability,
6
but has been couched in terms of breach of warranty under the
UCC solely to avoid the shorter statute of limitations under the
Product
Liability
Act,
the
statute
Product Liability Act will apply.”
of
limitations
under
the
B&B Paint Corp. v. Shrock
Mfg., Inc., 568 N.E.2d 1017, 1019 (Ind. Ct. App. 1991).
Here,
Mrs. Riley asserts that ObTape was unsafe for its intended use
and was not of merchantable quality.
Compl. ¶¶ 65, 68-72.
For
purposes of the pending motion, the Court treats these claims as
contract-based claims under Indiana law.
Under Indiana law, a breach of warranty claim “accrues when
the breach occurs, regardless of the aggrieved party’s lack of
knowledge
of
[hereinafter
the
§
breach.”
725(2)].
“A
tender of delivery is made.”
Ind.
breach
Id.
Code
of
§ 26-1-2-725(2)
warranty
occurs
when
There is an exception to this
general rule: “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.”
Id.
On its
face, the discovery rule applies only to express warranties that
explicitly extend to future performance.
A.H.
Robins
Co.,
570
F.
Supp.
1146,
Id.; accord Tolen v.
1154
(N.D.
Ind.
1983).
Here, Mrs. Riley did not point the Court to evidence of an
express warranty for ObTape that explicitly extends to future
performance.
Therefore, the discovery rule of § 725(2) does not
7
apply, and Mrs. Riley’s warranty claims are barred unless she
can establish that the statute of limitations was tolled for
some reason.
Mrs. Riley contends that Mentor fraudulently concealed its
breach of warranty, thereby tolling the statute of limitations.
Under Indiana Code § 34-11-5-1, “If a person liable to an action
conceals the fact from the knowledge of the person entitled to
bring the action, the action may be brought at any time within
the period of limitation after the discovery of the cause of
action.”
generally
Id.
the
“The
law
concealment
narrowly
defines
must
active
be
concealment,
and
and
intentional.”
Olcott Int’l & Co. v. Micro Data Base Sys., Inc., 793 N.E.2d
1063, 1072 (Ind. Ct. App. 2003).
“[A] plaintiff must show that
the wrongdoer was not simply silent but committed affirmative
acts designed to conceal the cause of action.”
Smith
Corp.,
Indiana law).
calculated
to
50
F.3d
1365,
1372
(7th
Cir.
Horn v. A.O.
1995)
(applying
“The affirmative acts of concealment must be
mislead
and
hinder
a
plaintiff
from
obtaining
information by the use of ordinary diligence, or to prevent
inquiry or elude investigation.” Olcott Int’l, 793 N.E.2d at
1072 (internal quotation marks omitted).
trick
or
contrivance
intended
by
the
“There must be some
defrauder
to
exclude
suspicion and prevent inquiry.” Id. (internal quotation marks
omitted).
“Mere lack of knowledge of a cause of action is not
8
enough to constitute concealment and toll the running of the
statute.”
Id. (internal quotation marks omitted).
“A plaintiff
bears the burden of proving that a statute of limitations should
be tolled, which includes demonstrating the use of reasonable
care and diligence to detect the alleged cause of action.”
Id.;
accord Horn, 50 F.3d at 1372 (noting that a plaintiff “must
demonstrate that he exercised reasonable care and due diligence
to discover the fraud”).
Here,
Mrs.
Riley
essentially
argues
that
because
Mentor
sold ObTape to her doctor and continued selling it until 2006
without disclosing certain complication rates that Mentor had
allegedly
tolled
discovered,
due
to
the
fraudulent
statute
of
limitations
concealment.
Mrs.
should
Riley
did
be
not,
however, point to any evidence that Mentor took affirmative acts
to prevent Mrs. Riley from knowing of a potential connection
between ObTape and her injuries.
The record is simply devoid of
any evidence from which a reasonable jury could conclude that
Mentor
fraudulently
prevented
Mrs.
Riley
from
discovering
a
connection between ObTape and her symptoms such that the statute
of
limitations
should
be
tolled.
As
discussed
above,
“[a]
breach of warranty occurs when tender of delivery is made.”
725(2).
§
Therefore, any breach of warranty occurred no later
than the date Mrs. Riley was implanted with ObTape—February 13,
2004.
Mrs. Riley filed this action more than four years later,
9
on October 13, 2011, so her warranty claims are time-barred, and
Mentor is entitled to summary judgment on these claims.
CONCLUSION
Mentor’s Motion for Partial Summary Judgment (ECF No. 43 in
4:11-cv-5075)
time-barred,
motion
as
to
is
so
granted.
Mrs.
the
grants
those
Court
claims.
Riley’s
Mr.
warranty
Mentor’s
and
Mrs.
claims
summary
Riley’s
are
judgment
remaining
tort-based claims will be considered as a single claim under the
Indiana Product Liability Act.
IT IS SO ORDERED, this 14th day of February, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
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