Jones et al v. Mentor Worldwide LLC
Filing
79
ORDER granting 73 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 03/02/2016. (CCL)
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 Nos.
4:11-cv-5080 (J. Jones)
O R D E R
Defendant
Mentor
Worldwide
LLC
developed
a
suburethral
sling product called ObTape Transobturator Tape, which was used
to
treat
women
with
stress
urinary
incontinence.
Plaintiff
Jeannette Jones was implanted with ObTape and asserts that she
suffered
injuries
caused
by
ObTape.
Mrs.
Jones
brought
a
product liability action against Mentor, contending that ObTape
had design and/or manufacturing defects that proximately caused
her injuries.
Mrs. Jones also contends that Mentor did not
adequately warn her physicians about the risks associated with
ObTape.
Her husband Charles asserts a loss of consortium claim.
Mentor argues that the Joneses’ claims are time-barred.
For the
reasons set forth below, the Court agrees, and Mentor’s summary
judgment motion (ECF No. 73 in 4:11-cv-5080) 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.”
Fed. R.
Civ. P. 56(a).
In determining whether a
genuine
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
On January 4, 2005, Dr. Curtis Powell implanted Jeannette
Jones with ObTape.
Within a year after the ObTape implant, Mrs.
Jones’s husband Charles felt exposed mesh during intercourse.
In July 2006, Mrs. Jones returned to Dr. Powell complaining of a
rough
spot
in
her
vagina.
Dr.
Powell
examined
Mrs.
Jones,
observed that her sling was exposed, and told Mrs. Jones that
the exposed portion of mesh needed to be removed.
Mrs. Jones
sought a second opinion from Dr. Randall Willis, who confirmed
that the ObTape had eroded and needed to be removed.
October
2006,
Mrs.
Jones
went
to
Dr.
Gennady
And in
Slobodov
complaining of vaginal discharge and painful intercourse; Dr.
Slobodov told Mrs. Jones that her mesh had eroded and needed to
be removed.
2
Dr. Slobodov performed an excision surgery on October 16,
2006.
He removed Mrs. Jones’s entire ObTape.
When Mrs. Jones
woke up from the surgery, she asked Dr. Slobodov if she could
see
the
mesh
because
she
knew
it
was
causing
her
problems.
Jones Dep. 49:14-15, ECF No. 73-5 (“If you had something giving
you that much trouble, wouldn’t you like to see a piece of
it?”).
At
her
follow-up
appointment
with
Dr.
Slobodov,
Mrs.
Jones reported no complaints, no pain, and no discharge.
The Joneses are Oklahoma residents, and all of Mrs. Jones’s
ObTape-related treatment took place in Oklahoma.
Mrs. Jones
asserts claims for negligence, strict liability - design defect,
strict
liability
–
manufacturing
defect,
strict
liability
–
failure to warn, breach of implied warranties, breach of express
warranties,
fraudulent
misrepresentation,
concealment, and negligent misrepresentation.
a loss of consortium claim.
fraudulent
Mr. Jones asserts
Mrs. Jones does not contest summary
judgment on her warranty claims, so Mentor’s summary judgment
motion is granted as to those claims.
DISCUSSION
The Joneses filed this action in the United States District
Court for the Western District of Oklahoma on October 31, 2011.
The Judicial Panel on Multidistrict Litigation transferred the
action to this Court for pretrial proceedings.
3
The parties
agree
that
Oklahoma
law,
the
law
of
the
transferor
court,
applies.
Oklahoma has a two-year statute of limitations for product
liability claims.
Okla. Stat. tit. 12, § 95(3); Kirkland v.
Gen. Motors Corp., 521 P.2d 1353, 1361 (Okla. 1974).
does
not
dispute
that
this
two-year
statute
of
Mrs. Jones
limitations
applies to her negligence, strict liability, and fraud claims.
She contends, however, that her claims did not accrue under
Oklahoma’s
discovery
rule
until
she
saw
a
television
advertisement about mesh complications shortly before she filed
this action.
Under Oklahoma’s discovery rule, the statute of limitations
for a product liability action begins to run when “the plaintiff
knows, or as a reasonably prudent person should know, that he
has
the
condition
for
which
defendant has caused it.”
his
action
is
brought
and
that
Williams v. Borden, Inc., 637 F.2d
731, 734 (10th Cir. 1980) (applying Oklahoma law).
And, a fraud
claim does not accrue until a plaintiff discovers the fraud,
although “a plaintiff is charged with having knowledge of those
facts which ought to have been discoverable in the exercise of
reasonable diligence.”
Erikson v. Farmers Grp., Inc., 151 F.
App’x 672, 676 (10th Cir. 2005) (applying Oklahoma law).
“[A] reasonably prudent person is required to pursue his
claim with diligence.”
Daugherty v. Farmers Coop. Ass’n, 689
4
P.2d 947, 951 (Okla. 1984).
“Statutes of limitation were not
designed to help those who negligently refrain from prosecuting
inquiries plainly suggested by the facts.”
chargeable
with
knowledge
of
facts
Id.
which
“A plaintiff is
he
ought
discovered in the exercise of reasonable diligence.”
Daugherty,
for
pesticides,
example,
and
his
the
doctors
insecticide poisoning.
plaintiff
was
tentatively
exposed
diagnosed
to
have
Id.
to
In
toxic
him
with
He did not pursue a claim against the
insecticide manufacturer until nearly three years later.
The
Oklahoma Supreme Court concluded that his claims were barred
because the record showed that he had enough facts “to put a
reasonable man upon inquiry” years before he filed his action.
Id.
The
Joneses
filed
this
action
five
years
after
three
different doctors told Mrs. Jones that her ObTape had eroded and
was causing her symptoms.
limitations
should
be
The Joneses argue that the statute of
tolled
because
Mentor
fraudulently
concealed from Mrs. Jones that ObTape was defective, so Mrs.
Jones was not on notice in 2006 that a defect in ObTape caused
her
injuries.
The
Joneses
did
not
point
to
any
Oklahoma
authority holding that a plaintiff must be on actual notice that
her
injuries
were
caused
by
a
product
defect.
Rather,
the
precedent establishes that a claim accrues when the plaintiff
becomes aware of an injury and a causal connection between the
5
injury and the defendant’s product.
Williams, 637 F.2d 731
(10th Cir. 1980); accord Resolution Trust Corp. v. Grant, 901
P.2d 807, 813 (Okla. 1995) (noting that discovery rule tolls the
limitations period “until the injured party knows or, in the
exercise
of
reasonable
diligence,
should
have
known
of
the
causing
her
injury”).
Mrs.
Jones
symptoms.
knew
in
2006
that
ObTape
was
She even asked the doctor who performed her excision
procedure to show her the mesh that was causing her trouble.
And,
after
Mrs.
Jones
symptoms went away.
Oklahoma
law
to
had
her
ObTape
removed
in
2006,
her
At that point, Mrs. Jones had a duty under
investigate
the
potential
between ObTape and her injuries.
causal
connection
A reasonable person in her
situation would take some action to follow up on the cause of
her
injuries
and
try
to
find
out
whether
the
injuries
were
caused by a problem with ObTape, a problem with the implant
surgery, or some other problem. But Mrs. Jones pointed to no
evidence that she took any action to investigate her potential
claims even though she knew in 2006 that there was a connection
between her injuries and the ObTape.
Under these circumstances,
the Court concludes that the statute of limitations for Mrs.
Jones’s
claims
began
running
in
2006
and
that
fraudulent
concealment does not toll the statute of limitations.
Mrs.
Jones did not file this action within two years, so her claims
6
are
time-barred.
Mr.
Jones’s
loss
of
consortium
claim
is
derivative of Mrs. Jones’s claims; because her underlying claims
fail, his loss of consortium claim also fails.
Laws v. Fisher,
513 P.2d 876, 878 (Okla. 1973).
CONCLUSION
As discussed above, the Joneses’ claims are time-barred,
and Mentor’s summary judgment motion (ECF No. 73 in 4:11-cv5080) is granted.
IT IS SO ORDERED, this 2nd day of March, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
7
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?