FORD v. MENTOR WORLDWIDE LLC et al

Filing 49

ORDER granting 38 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/16/2015. (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-196 (C. FORD)

O R D E R
Defendant

Mentor

Worldwide

LLC

developed

a

suburethral

sling product called ObTape Transobturator Tape, which was used
to

treat

Carol

women

Ford

with

was

stress

implanted

urinary

with

ObTape

suffered injuries caused by ObTape.
liability

action

against

incontinence.

Mentor,

and

Plaintiff

asserts

that

she

Ford brought this product
contending

that

ObTape

had

design and/or manufacturing defects that proximately caused her
injuries.

Ford also asserts that Mentor did not adequately warn

her physicians about the risks associated with ObTape.
contends

that

Ford’s

statutes of limitation.

claims

are

barred

by

the

Mentor

applicable

For the reasons set forth below, the

Court agrees, and Mentor’s Motion for Summary Judgment (ECF No.
38 in 4:12-cv-196) 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
Viewed in the light most favorable to Ford, the record
reveals the following.

Ford is a resident of Colorado, and all

of her medical treatment relevant to this action occurred in
Colorado.

Ford consulted her doctor, Dr. Johnny Johnson, Jr.,

about her stress urinary incontinence symptoms.

Dr. Johnson

suggested mesh implant surgery and implanted Ford with ObTape on
October 21, 2004.
and

symptoms

of

Shortly after the surgery, Ford had discharge
a

urinary

tract

infection.

She

continued

experiencing these symptoms, and in March 2005 Dr. Johnson found
an erosion of the ObTape and diagnosed Ford with vaginitis due
to the erosion.
March 2005.

Dr. Johnson removed part of Ford’s ObTape in

Ford’s discharge and vaginitis symptoms persisted,

and Dr. Johnson performed another excision surgery in December
2006.

2

Ford continued to experience discharge and other problems.
In December 2007, she wrote a letter to Terri Oto, a market
manager for Mentor.

Mot. for Summ. J. Ex. D, Letter from Carol

Ford to Terri Oto (Dec. 1, 2007), ECF No. 38-7.

Ford reported

that she “had nothing but problems” after her ObTape implant.
Ford explained her symptoms and complained that her doctors were
unable to fix the problems.
pulled

off

the

market

Ford noted that ObTape had “been

because

of

the

same

results

to

other

individuals,” and she stated that she deserved “compensation for
the outcome for the last four years.”

Id.

Ford filed her Complaint on August 3, 2012.
Compl.,

ECF

No.

1

in

4:12-cv-196.

Ford

See generally

brought

claims

for

personal injury under a variety of theories, including strict
liability design defect, strict liability manufacturing defect,
strict liability failure to warn, and negligence.
DISCUSSION
Ford

filed

her

direct filing order.

action

in

this

Court

under

the

Court’s

The parties agreed that for direct-filed

cases, the “Court will apply the choice of law rules of the
state where the plaintiff resides at the time of the filing of
the complaint.”
446

in

Order Regarding Direct Filing § II(E), ECF No.

4:08-md-2004.

The

parties

agree

that

Colorado

law,

including its statutes of limitation, apply to Ford’s claims

3

because

Ford

is

a

Colorado

resident

and

all

of

her

medical

treatment relevant to this action occurred in Colorado.
Colorado has a two-year statute of limitations for product
liability claims.

Colo. Rev. Stat. Ann. § 13-80-106(1).

Under

Colorado’s discovery rule, a personal injury cause of action
accrues “on the date both the injury and its cause are known or
should have been known by the exercise of reasonable diligence.”
Colo. Rev. Stat. Ann. § 13-80-108(1).

“Once a plaintiff has

suspicion of wrongdoing, she is under a duty to attempt to find
the facts.”

Norris v. Baxter Healthcare Corp., 397 F.3d 878,

887 (10th Cir. 2005) (applying Colorado law).

For example, in

Norris, the plaintiff claimed that she suffered injuries due to
defective breast implants.

The Tenth Circuit found that the

plaintiff had an obligation to investigate the problems with her
breast implants when “her doctor told her that he believed that
her implants were causing the problem and informed her that both
of her implants needed to be removed.”

Id.

Ford claims that she did not discover that her problems may
have been caused by defect in ObTape until she saw a television
commercial regarding mesh injuries in 2011.

But Ford knew in

2005 that her doctor diagnosed her with vaginitis due to erosion
of

the

ObTape,

and

she

knew

by

performed two excision surgeries.

2006

that

her

doctor

had

And by December of 2007, Ford

believed that ObTape was defective—she knew that ObTape had been

4

taken off the market, she believed that Mentor had taken ObTape
off the market because other women had problems with it, and she
sought compensation for her own problems with ObTape.

Based on

this evidence, Ford’s claims accrued in December 2007 at the
latest, but she did not bring her claims until nearly five years
later.

Her claims are therefore time-barred under Colorado law.
CONCLUSION

As discussed above, Mentor’s Motion for Summary Judgment
(ECF No. 38 in 4:12-cv-196) is granted.

IT IS SO ORDERED, this sixteenth day of September, 2015.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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