MCBRIDE v. MENTOR WORLDWIDE LLC
ORDER granting 49 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 03/04/2016. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
IN RE MENTOR CORP. OBTAPE
TRANSOBTURATOR SLING PRODUCTS
MDL Docket No. 2004
O R D E R
sling product called ObTape Transobturator Tape, which was used
Frances Ann McBride was implanted with ObTape and asserts that
product liability action against Mentor, contending that ObTape
had design and/or manufacturing defects that proximately caused
adequately warn her physicians about the risks associated with
contending that they are time-barred.
For the reasons set forth
below, Mentor’s summary judgment motion (ECF No. 49 in 4:12-cv249) 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
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.
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
On May 2, 2005, Dr. Fah Che Leong implanted Frances Ann
McBride with ObTape to treat her stress urinary incontinence.
During that surgery, Dr. Leong also implanted McBride with a
Veritas bovine graft to correct other symptoms.
Within a year
occasions for granulation tissue and extrusion of the sutures
from the Veritas graft.
Then, in July 2006, Dr. Leong told
McBride that he suspected a sling erosion, and he recommended a
Dr. Leong performed the revision surgery in
He excised the exposed portion of McBride’s ObTape
and also removed exposed sutures.
In March 2007, McBride sought treatment from Dr. Dionysios
Veronikis because she was still experiencing vaginal discharge
infection in the area of her mesh and that the mesh had to come
out to clear her infection.
McBride Dep. 111:13-112:11, ECF No.
49-5 (stating that Dr. Veronikis told her “there was no way to
treat [the infection] other than taking the mesh out”).
understood from Dr. Veronikis that “there was no healing [the
ObTape], it had to come out.”
Id. at 112:19-21.
In March 2007,
Dr. Veronikis performed surgery to remove McBride’s ObTape.
was able to remove all but a small piece of the ObTape.
the excision surgery, Dr. Veronikis concluded that the ObTape
McBride’s infection was resolved.
Id. at 114:24-115:6.
after the excision procedure, McBride called Dr. Leong to tell
him that her ObTape had been removed; she was upset that he had
“given [her] something that had not worked.”
treatment took place in Missouri.
Id. at 118:13-23.
She filed her action in this
Court pursuant to the Court’s direct filing order on September
20, 2012, asserting claims for negligence, strict liability design defect, strict liability – manufacturing defect, strict
fraudulent concealment, and negligent misrepresentation.
McBride filed her action in this Court under the Court’s
direct filing order.
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
Order Regarding Direct Filing § II(E), ECF No.
ObTape-related treatment took place in Missouri, and the parties
agree that Missouri law applies to her claims.
that all of McBride’s claims are time-barred under Missouri law.
McBride’s Tort Claims
Missouri has a five-year statute of limitations for tort
limitations applies to McBride’s negligence (including negligent
resulting from a breach of duty “is sustained and capable of
Lockett v. Owens-Corning Fiberglas, 808 S.W.2d
902, 907 (Mo. Ct. App. 1991) (citing Mo. Stat. Ann. § 516.100).
Under Missouri law, where “the damage is a physical ailment, it
McBride also argues the limitations period for her express warranty
claim is five years.
The Court previously concluded that the
limitations period for express warranty claims under Missouri law is
See Clinton v. Mentor Worldwide LLC, Order on Mot. for
Partial Summ. J. 6-8, ECF No. 67 in 4:12-cv-245 (M.D. Ga. Feb. 29,
But even if the five-year limitations period applies as
McBride argues, her express warranty claim would still be time-barred.
is ‘sustained and capable of ascertainment,’ at the latest, when
asbestosis); accord Elmore v. Owens-Illinois, Inc., 673 S.W.2d
434, 436 (Mo. 1984) (finding that asbestosis plaintiff’s claims
did not accrue until he was diagnosed with asbestosis).
notice of a potentially actionable injury.’”
Powel v. Chaminade
Coll. Preparatory, Inc., 197 S.W.3d 576, 582 (Mo. 2006),
modified on denial of reh’g (Aug. 22, 2006) (quoting Bus. Men’s
Assurance Co. of Am. v. Graham, 984 S.W.2d 501, 507 (Mo. 1999)).
statute accrues, the plaintiff must have notice of the existence
of the wrong and the damage “or of something that puts plaintiff
on notice to inquire further.”
Id. at 584.
In Lockett, for
example, the plaintiff was exposed to asbestos and contracted
The Missouri Court of Appeals concluded that the
statute of limitations began to run when the plaintiff received
a diagnosis of asbestosis.
Lockett, 808 S.W. at 908.
reasoned that the five years after that diagnosis “was ample
diligence to protect himself and his rights.”
noted that the plaintiff’s failure to follow up on the diagnosis
in a timely manner was “precisely [the] sort of delay in the
connection between ObTape and her injuries until 2011 when she
saw a television commercial regarding mesh complications.
injuries caused by ObTape well before then.
In March 2007,
McBride’s doctor told her that she had an infection in the area
of her mesh and that the mesh had to come out to clear her
McBride understood that there was no way to treat
the infection other than taking out the mesh.
And she was upset
that her implanting physician had implanted her with a product
suspected, or had enough information to know of a connection
between ObTape and at least some of her injuries by March 2007.
A reasonable person in that 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.
accrued in March 2007.
She did not file her action until more
than five years later, so her tort claims are barred.
McBride’s Fraud and Intentional Misrepresentation Claims
Missouri has a five-year statute of limitations for fraud
Mo. Ann. Stat. § 516.120(5).
A fraud cause of action
does not accrue “until the discovery by the aggrieved party, at
any time within ten years, of the facts constituting the fraud.”
within five years from when the cause of action accrues, which
is either when the fraud is discovered or at the end of 10 years
after the fraud takes place, whichever occurs first.” Ellison v.
Fry, 437 S.W.3d 762, 769 (Mo. 2014).
As McBride acknowledges,
“[a] cause of action for fraud accrues at the time the defrauded
party discovered or in the exercise of due diligence, should
have discovered the fraud.”
Burr v. Nat'l Life & Acc. Ins. Co.,
667 S.W.2d 5, 7 (Mo. Ct. App. 1984).
“The plaintiff maintains
“Where the means of discovery exist, the plaintiff
will be deemed to have known of the fraud so as to begin the
running of the statute.”
Thus, to avoid being barred by
the statute of limitations, plaintiffs must show “due diligence
on their part in attempting to discover the fraud” and that they
could not have discovered the fraud with due diligence.
As discussed above, McBride knew of, strongly suspected, or
had enough information to know of a connection between ObTape
and at least some of her injuries by March 2007.
person in that situation would take some action to follow up on
injuries were caused by a problem with ObTape, a problem with
the implant surgery, or some other problem.
But McBride pointed
investigate her potential claims even though she knew (or had
enough information to know) there was a connection between her
injuries and the ObTape.
She also did not point to evidence
that she could not have discovered enough facts to support her
fraud claims had she started investigating the connection she
made (or had enough information to make) between ObTape and her
For these reasons, the Court finds that McBride’s
fraud and intentional misrepresentation claims accrued in March
She did not file her complaint within five years, so her
fraud claims are time-barred.
As discussed above, Mentor’s summary judgment motion (ECF
No. 49 in 4:12-cv-249) is granted.
IT IS SO ORDERED, this 4th day of March, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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?