Sandra Purol et al v. Mentor Worldwide LLC
Filing
72
ORDER granting 63 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 08/04/2015. (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.
4:12-cv-102 (S. PUROL)
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
Sandra Purol was implanted with ObTape, and she asserts that she
suffered injuries caused by ObTape.
Mrs. Purol brought this
product liability action against Mentor, contending that ObTape
had design and/or manufacturing defects that proximately caused
her
injuries.
Mrs.
Purol
also
asserts
that
Mentor
did
not
adequately warn her physicians about the risks associated with
ObTape.
Mrs.
Purol’s
consortium claim.
barred
by
the
husband
Joseph
brought
a
loss
of
Mentor contends that the Purols’ claims are
applicable
statute
of
limitations.
For
the
reasons set forth below, the Court agrees, and Mentor’s Motion
for Summary Judgment (ECF No. 63 in 4:12-cv-102) 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
favorable
to
the
Purols,
the
record reveals the following.
The
Purols
are
residents
of
Michigan,
and
all
of
Mrs.
Purol’s medical treatment related to this action occurred in
Michigan.
Mrs. Purol experienced symptoms of stress urinary
incontinence and urinary urgency.
She visited Dr. Richard Bates
for an evaluation of her symptoms.
Dr. Bates implanted Mrs.
Purol with ObTape on November 4, 2004.
After the implant surgery, Mrs. Purol developed dyspareunia
(difficult or painful sexual intercourse), vaginal discharge,
and spotting.
She went to see Dr. Bates’s nurse practitioner,
Bonnie Bartz, in May of 2005.
Ms. Bartz conducted a physical
exam and observed a vaginal erosion of the ObTape.
2
Ms. Bartz
told Mrs. Purol that there was a hole in her vaginal wall, that
Ms. Bartz could feel the ObTape coming through the hole, that
Mrs. Purol had an infection, and that the ObTape needed to be
removed.
S. Purol Dep. 67:11-68:24, ECF No. 68-19.
Mrs. Purol
did not ask Ms. Bartz why she had a hole in her vaginal wall or
why she had an infection.
Id. at 69:9-18.
Dr. Bates surgically
excised all of Mrs. Purol’s ObTape on May 18, 2005.
Mrs. Purol
did not point to any evidence that she suffered injuries due to
ObTape after the sling was removed in 2005.
The Purols filed this action in the United States District
Court for the Central District of California on March 8, 2012.
See generally Compl., ECF No. 1 in 4:12–cv–102.
later
transferred
to
this
Court
as
part
of
The action was
a
multidistrict
litigation proceeding regarding ObTape.
DISCUSSION
The Court must apply California’s choice-of-law rules to
determine which state law controls.
In re Nucorp Energy Sec.
Litig., 772 F.2d 1486, 1492 (9th Cir. 1985) (noting that MDL
transferee
court
must
apply
transferor
court’s
choice-of-law
rules); accord Anschutz Corp. v. Merrill Lynch & Co., 690 F.3d
98, 112 (2d Cir. 2012) (same).
Under California law, if a cause of action that arose in
another state is time-barred in that state, then it is also
time-barred in California.
Cal. Civ. Proc. Code § 361 (“When a
3
cause of action has arisen in another State . . . and by the
laws
thereof
an
action
thereon
cannot
there
be
maintained
against a person by reason of the lapse of time, an action
thereon shall not be maintained against him in this State[.]”).
Thus, the first question for the Court is where this action
arose.
Mentor asserts that the action arose in Michigan, so
California’s choice-of-law rules require application of Michigan
law.
The Purols argue that their cause of action arose in
California, so California’s statute of limitations applies.
The
Purols’ argument is based on their assertion that a number of
Mentor’s employees who made key decisions about the sale of
ObTape were based in California.
But the case the Purols cite
in support of their argument that their cause of action arose in
California
concluded
that
a
product
liability
action
for
a
defective medical device arose where the device was purchased,
implanted, and allegedly caused injuries.
Vestal v. Shiley,
Inc., No. SACV96-1205-GLT(EEX), 1997 WL 910373, at *2 (C.D. Cal.
Nov. 17, 1997) (finding that the plaintiff’s claims arose in
North Carolina, “where she purchased the heart valves, where the
valves were implanted, and where the alleged injury occurred”);
accord Cossman v. DaimlerChrysler Corp., 133 Cal. Rptr. 2d 376,
381-82
(Cal.
Ct.
App.
2003)
(finding
that
the
plaintiff’s
personal injury claims arose in Indiana, where she was exposed
to asbestos and diagnosed with mesothelioma); Giest v. Sequoia
4
Ventures, Inc., 99 Cal. Rptr. 2d 476, 478 (Cal. Ct. App. 2000)
(finding that the plaintiffs’ product liability claims arose in
Montana, where the decedent was exposed to asbestos).
The Court
thus finds that the Purols’ cause of action arose in Michigan,
where
Mrs.
injuries.
Under
Purol
was
implanted
with
Michigan
§ 600.5805(13).
time
and
suffered
Michigan’s statute of limitations thus applies.
law,
the
statute
product liability action is three years.
the
ObTape
the
of
limitations
for
a
Mich. Comp. Laws Ann.
The statute of limitations begins to run “at
wrong
upon
which
the
claim
is
regardless of the time when damage results.”
based
was
done
Id. § 600.5827.
The “wrong” is done on the date the plaintiff is harmed by the
defendant’s actions.
Connelly v. Paul Ruddy’s Equip. Repair &
Serv. Co., 200 N.W.2d 70, 72-73 (Mich. 1972).
It is undisputed
that Mrs. Purol experienced complications with her ObTape in
2005 and had the sling removed.
During that same timeframe, she
experienced painful sexual intercourse that led to a decline in
her intimate relationship with Mr. Purol.
The Purols argue that their claims should be tolled because
Mentor fraudulently concealed ObTape’s design defects.
Michigan
does not have a general discovery rule that tolls the statute of
limitations in product liability cases.
Corp.,
Docket Nos. 272654, 272666,
Bearup v. Gen. Motors
2009 WL 249456, at *5-*6
(Mich. Ct. App. Feb. 3, 2009) (per curiam) (citing Trentadue v.
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Buckler Lawn Sprinkler, 738 N.W.2d 664, 684 (Mich. 2007)).
But
if
the
a
defendant
“fraudulently
conceals
the
existence
of
claim,” then the statute of limitations is tolled until the
person “discovers, or should have discovered, the existence of
the claim.”
must
Mich. Comp. Laws Ann. § 600.5855.
determine
whether
the
Purols
pointed
Thus, the Court
to
evidence
that
Mentor fraudulently concealed their claim.
Under
Michigan
law,
fraudulent
concealment
of
a
claim
“means concealment of the fact that the plaintiff has a cause of
action.”
App.
Tonegatto v. Budak, 316 N.W.2d 262, 266 (Mich. Ct.
1982)
statute
(per
did
curiam)
not
toll
(finding
that
fraudulent
medical
malpractice
concealment
claims
because
hospital’s failure to inform the plaintiff of the risks of her
operation
did
“not
malpractice claim”).
constitute
fraudulent
concealment
of
her
The fraudulent concealment statute only
applies when a defendant takes an affirmative act to hinder a
plaintiff’s investigation into the cause of her problem with a
product.
Ciborowski v. Pella Window & Door Co., No. 257091,
2005 WL 3478159, at *3-*4 (Mich. Ct. App. Dec. 20, 2005) (per
curiam) (finding no fraudulent concealment where
told
the
plaintiffs
that
their
window
leaks
manufacturer
were
caused
by
faulty installation, not a defect in the product, and did not
tell the plaintiffs that the window model had been designed to
remedy a defect).
6
Here, the Purols argue that because Mentor sold ObTape to
Mrs. Purol’s doctor and continued selling it until 2006 without
disclosing certain complication rates that Mentor had allegedly
discovered, the statute of limitations should be tolled due to
fraudulent concealment.
not
reasonably
The Purols also contend that they could
discover
the
existence
of
their
claims
until
2012, when Mrs. Purol decided to read her medical records after
seeing a television commercial related to vaginal mesh injuries.
S. Purol Dep. 100:5-9.
But the Purols knew in 2005—when Mrs.
Purol experienced complications that required the removal of her
ObTape—that
ObTape may have caused
their injuries.
At that
time, a person of common knowledge and experience in the Purols’
position would have been on notice that their injuries may be
related to ObTape, and they would have been able to begin an
investigation to determine whether those injuries were caused by
a problem with ObTape, a problem with the implantation surgery,
or another problem.
In fact, Mrs. Purol testified that “it came
to” her when she read her medical records—which presumably would
have been available to her in 2005 had she asked—that ObTape
caused her injuries.
Id.
In sum, the Purols did not point to
any evidence that Mentor took affirmative acts to prevent them
from knowing of a potential connection between ObTape and their
injuries, so Mich. Comp. Laws Ann. § 600.5855 does not apply to
toll the statute of limitations.
7
For these reasons, the Court finds that no genuine fact
dispute exists on when the Purols’ claims accrued.
accrued by May of 2005.
Their claims
They did not file their action within
three years after their claims arose.
Therefore, the Purols’
claims are barred by Mich. Comp. Laws Ann. § 600.5805(13), and
Mentor is entitled to summary judgment on their claims.
IT IS SO ORDERED, this 4th day of August, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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