MCBRIDE v. MENTOR WORLDWIDE LLC

Filing 55

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
COLUMBUS DIVISION
IN RE MENTOR CORP. OBTAPE

*

TRANSOBTURATOR SLING PRODUCTS

*

LIABILITY LITIGATION

*

MDL Docket No. 2004
4:08-MD-2004 (CDL)
Case Nos.
4:12-cv-249 (McBride)

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

Frances Ann McBride was implanted with ObTape and asserts that
she

suffered

injuries

caused

by

ObTape.

McBride

brought

a

product liability action against Mentor, contending that ObTape
had design and/or manufacturing defects that proximately caused
her

injuries.

McBride

also

asserts

that

Mentor

did

not

adequately warn her physicians about the risks associated with
ObTape.

Mentor

seeks

summary

judgment

contending that they are time-barred.

on

McBride’s

claims,

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.”

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 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.
after

her

surgery,

Dr.

Leong

treated

Within a year

McBride

on

several

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
revision surgery.
August 2006.

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
and

bleeding.

Dr.

Veronikis

told

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McBride

that

she

had

an

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”).

McBride

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.

He

During

the excision surgery, Dr. Veronikis concluded that the ObTape
caused

McBride’s

infection.

After

McBride’s infection was resolved.

the

excision

Id. at 114:24-115:6.

surgery,
Shortly

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.”
McBride

is

a

Missouri

resident

treatment took place in Missouri.

Id. at 118:13-23.

whose

ObTape-related

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
liability
breach

of

–

failure
express

to

warn,

breach

warranties,

of

fraudulent

implied

warranties,

misrepresentation,

fraudulent concealment, and negligent misrepresentation.

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DISCUSSION
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
the complaint.”
446

in

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

4:08-md-2004.

McBride

is

a

Missouri

resident

whose

ObTape-related treatment took place in Missouri, and the parties
agree that Missouri law applies to her claims.

Mentor contends

that all of McBride’s claims are time-barred under Missouri law.
I.

McBride’s Tort Claims
Missouri has a five-year statute of limitations for tort

claims.

Mo.

Ann.

Stat.

§

516.120(4).

This

statute

of

limitations applies to McBride’s negligence (including negligent
misrepresentation),
claims.1

A

tort

strict
cause

of

liability,
action

and

accrues

implied
when

warranty

the

damage

resulting from a breach of duty “is sustained and capable of
ascertainment.”

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

1

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
four years.
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,
2016).
But even if the five-year limitations period applies as
McBride argues, her express warranty claim would still be time-barred.

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is ‘sustained and capable of ascertainment,’ at the latest, when
it

is

diagnosed.”

claims

accrued

Id.

when

(finding

he

that

received

his

asbestosis
initial

plaintiff’s

diagnosis

of

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).
“[T]he
‘evidence

statute

was

such

of

limitations

to

place

a

begins

reasonably

notice of a potentially actionable injury.’”

to

run

prudent

when

the

person

on

Powel v. Chaminade

Coll. Preparatory, Inc., 197 S.W.3d 576, 582 (Mo. 2006),

as

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)).
Although

all

possible

damages

need

not

be

known

before

the

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
asbestosis.

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.

The court

reasoned that the five years after that diagnosis “was ample
time

for

plaintiff,

as

a

reasonable

man,

diligence to protect himself and his rights.”

to

exercise

Id.

due

The court

noted that the plaintiff’s failure to follow up on the diagnosis

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in a timely manner was “precisely [the] sort of delay in the
prosecution
designed

of

to

claim

prevent

defendants.”
Here,

a

that

and

the

from

statute

which

of

limitations

the

statute

did

not

is

protects

Id.
McBride

contends

that

she

learn

of

a

connection between ObTape and her injuries until 2011 when she
saw a television commercial regarding mesh complications.
McBride

knew

or

should

have

known

that

she

injuries caused by ObTape well before then.

suffered

But
some

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
infection.

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
that

did

not

work.

Therefore,

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.
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.
statute

of

limitations

accrued in March 2007.

for

McBride’s

tort

claims

The

therefore

She did not file her action until more

than five years later, so her tort claims are barred.

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II.

McBride’s Fraud and Intentional Misrepresentation Claims
Missouri has a five-year statute of limitations for fraud

claims.

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.”
Id.

“Under

this

statute,

all

fraud

claims

must

be

brought

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

duty

fraud.”

to
Id.

make

inquiry

to

“The plaintiff maintains

discover

the

facts

surrounding

“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.”

Id.

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.

Id.

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.

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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.
to

no

evidence

that

she

exercised

But McBride pointed

reasonable

diligence

to

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
injuries

within

connection.

a

reasonable

time

after

she

discovered

the

For these reasons, the Court finds that McBride’s

fraud and intentional misrepresentation claims accrued in March
2007.

She did not file her complaint within five years, so her

fraud claims are time-barred.
CONCLUSION
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

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