SASS v. MENTOR WORLDWIDE LLC
Filing
49
ORDER granting 43 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-251 (Sass)
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
Patricia Lynne Sass was implanted with ObTape and asserts that
she suffered injuries caused by ObTape.
liability
action
against
Mentor,
Sass brought a product
contending
that
ObTape
had
design and/or manufacturing defects that proximately caused her
injuries.
Sass also asserts that Mentor did not adequately warn
her physicians about the risks associated with ObTape.
Mentor
seeks summary judgment on Sass’s claims, contending that they
are time-barred.
For the reasons set forth below, Mentor’s
summary judgment motion (ECF No. 43 in 4:12-cv-251) 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
Patricia
Kutsche
for
Lynne
Sass
stress
sought
urinary
from
incontinence.
recommended an ObTape implant.
ObTape on January 21, 2005.
treatment
Dr.
Dr.
William
Kutsche
Dr. Kutsche implanted Sass with
In May 2005, Sass returned to Dr.
Kutsche complaining of dyspareunia and yellowish brown vaginal
discharge.
opened.
Dr.
Kutsche
observed
that
Sass’s
incision
had
He told Sass that her incision was open, that she had
an infection, and that a portion of her ObTape needed to be
removed.
Sass Dep. 70:5-14, ECF No. 43-4 in 4:12-cv-251.
Dr.
Kutsche removed a three-inch portion of Sass’s ObTape on May 9,
2005.
Dr. Kutsche performed another revision in June 2005.
Sass
continued
to
experience
vaginal
Kutsche referred her to Dr. Andrew Agosta.
bleeding,
and
Dr.
In September 2005,
Dr. Agosta diagnosed Sass with a localized abscess over her
ObTape incision.
Given the location of the abscess, Dr. Agosta
2
believed that it was caused by the ObTape.
In December 2005,
Sass had another abscess in the same area.
Dr. Agosta again
concluded that it was caused by the ObTape.
Sass was a Kentucky resident when she filed her complaint,
but all of her ObTape-related treatment took place in Michigan.
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 – failure to warn, breach
of implied warranties, breach of express warranties, fraudulent
misrepresentation,
fraudulent
concealment,
and
negligent
misrepresentation.
DISCUSSION
Sass
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.”
Order Regarding Direct Filing § II(E), ECF No.
446 in 4:08-md-2004.
filed
her
complaint,
Sass was a Kentucky resident when she
and
the
parties
agree
choice-of-law analysis applies to her claims.
that
Kentucky’s
The parties also
agree that Sass’s claims arose in Michigan, where all of her
ObTape-related treatment took place.
3
See Abel v. Austin, 411
S.W.2d
728,
736-37
(Ky.
2013)
(finding
that
fraud
cause
of
arises
in
action arose where plaintiffs lived and were injured).
Under
Kentucky
law,
when
a
cause
of
action
another state, Kentucky’s limitation period applies unless the
other state’s limitation period is shorter.
§ 413.320.
Ky. Rev. Stat. Ann.
Michigan has a three-year statute of limitations for
product liability actions, Mich. Comp. Laws Ann. § 600.5805(13),
and “it applies irrespective of how plaintiff proceeded to seek
such recovery.”
State Mut. Cyclone Ins. Co. v. O & A Elec. Co-
op., 161 N.W.2d 573, 576 (Mich. 1968).
Kentucky has a one-year
statute of limitations for personal injury claims, a four-year
statute of limitations for breach of warranty claims, and a
five-year statute of limitations for fraud claims.
Stat. Ann. §§ 413.140(1)(A), 355.2-725(1),
Thus,
the
parties
agree
that
under
Ky. Rev.
413.120(11).
Kentucky’s
borrowing
statute, Kentucky’s one-year statute of limitations applies to
Sass’s strict liability and negligence claims.
that
Michigan’s
three-year
statute
of
They also agree
limitations
Sass’s breach of warranty and fraud claims.
applies
to
Mentor contends
that all of Sass’s claims are time-barred.
I.
Sass’s Strict Liability and Negligence Claims
Kentucky has a one-year statute of limitations for personal
injury claims.
Ky. Rev. Stat. Ann. § 413.140(1)(A).
A personal
injury claim does not “accrue until the plaintiff discovers (or
4
in the exercise of reasonable diligence should have discovered)
not only that he has been injured, but also that this injury may
have been caused by the defendant’s conduct.”
Fluke Corp. v.
LeMaster, 306 S.W.3d 55, 60 (Ky. 2010); accord Perkins v. Ne.
Log Homes, 808 S.W.2d 809, 819 (Ky. 1991).
“In the products
liability
awareness
context,
a
potential
plaintiff’s
of
an
injury and of the instrumentality causing the injury is enough
to trigger the limitations clock and to impose on the plaintiff
the duty to discover the responsible parties.”
Reese v. Gen.
Am. Door Co., 6 S.W.3d 380, 383 (Ky. Ct. App. 1998); accord
Fluke Corp., 306 S.W.3d at 61.
In Fluke Corp., for example,
three electrical contractors were injured by an explosion that
occurred when they were working on a breaker that their voltage
meter showed had no electricity flowing to it even though there
was.
Even though the contractors “had not previously heard of
voltage
meters
malfunctioning,”
“they
should
have
reasonably
suspected that the voltage meter was not working properly and
investigated this possibility.”
Fluke Corp., 306 S.W.3d at 61.
Here, Sass contends that she did not learn of a connection
between ObTape and her injuries until 2011 when a friend told
her about a television commercial regarding mesh complications.
But
Sass
knew
or
should
have
known
that
injuries related to ObTape well before then.
she
suffered
some
By December 2005,
Sass had undergone two ObTape revision surgeries and had been
5
treated for two abscesses that her doctor believed were caused
by the ObTape.
Sass presented no evidence that her doctors told
her that her injuries were not connected to ObTape.
December
2005,
Sass
had
enough
information
to
know
So, by
of
a
connection between ObTape and at least some of her injuries.
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.
appears
to
argue
that
she
had
no
reason
to
Sass
investigate
her
potential claims because her doctors never told her there was a
defect
in
ObTape.
But
that
is
not
the
standard.
Sass
reasonably should have suspected a connection between ObTape and
her injuries, so she had a duty to investigate.
She did not, so
the discovery rule does not save her claims.
Sass argues that even if the discovery rule does not save
her
strict
concealment
liability
should
and
toll
the
negligence
statute
of
claims,
fraudulent
limitations.
Under
Kentucky law, a statute of limitations may be tolled if the
defendant engages in “conduct which in point of fact misleads or
deceives
plaintiff
and
obstructs
or
instituting his suit while he may do so.”
prevents
him
from
Emberton v. GMRI,
Inc., 299 S.W.3d 565, 573 (Ky. 2009) (quoting Adams v. Ison, 249
S.W.2d
791,
792
(Ky.
1952)).
In
6
Emberton,
for
example,
a
restaurant
patron
hepatitis
A
practices.
sued
from
a
a
restaurant
server
with
after
he
questionable
contracted
handwashing
During the health department’s investigation of the
patron’s hepatitis A exposure, the restaurant’s manager embarked
on a “comprehensive and systematic suppression” of the fact that
the
server
had
hepatitis
A
and
that
other
employees
witnessed the server’s lack of appropriate hygiene.
had
Id. at 575.
The Kentucky Supreme Court found that the statute was tolled
until the patron found out that thirteen cases of hepatitis A
had been traced to the restaurant.
Id.
The Kentucky Supreme
Court emphasized that the patron could not have discovered the
source
of
diligence.
his
hepatitis
A
infection
through
reasonable
Id.
Here, Sass argues that Mentor had a duty to disclose the
true risks of ObTape to her physician before he implanted her
with it.
She asserts that Mentor concealed the true risks of
ObTape and that her physician would not have implanted it had he
known its true risks.
She does not appear to contend that
Mentor did something after she was implanted with ObTape to
conceal her potential claims.
does not apply.
The rationale of Emberton thus
Moreover, the Kentucky Supreme Court rejected
an argument similar to Sass’s that the statute of limitations
does
not
start
to
run
“unless
the
product
manufacturer
issued a recall or otherwise publicly disclosed defects.”
7
has
Fluke
Corp., 306 S.W.3d at 63.
The Kentucky Supreme Court emphasized
that
duty
“plaintiffs
have
a
to
inquire
into
the
safety
of
products where it is apparent from the facts that the product
may have been a potential cause of an injury.”
Id. at 64.
As discussed above, Sass had enough information to know of
a connection between ObTape and at least some of her injuries by
December 2005, if not before.
But Sass pointed to no evidence
that she took any action 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 claims had she started investigating
the
connection
between
ObTape
and
her
injuries
reasonable time after she discovered the connection.
within
a
For all of
these reasons, the statute of limitations for Sass’s tort claims
accrued in December 2005.
Sass did not file her action until
nearly seven years later, so her strict liability and negligence
claims are time-barred.
II.
Sass’s Warranty and Fraud Claims
Michigan’s
statute
of
limitations
for
product
liability
actions, regardless of the plaintiff’s theory of the case, is
three
years.
Mich.
Comp.
Laws
Ann.
§
600.5805(13).
Under
Michigan law, a claim accrues at “the time the wrong upon which
the claim is based was done regardless of the time when damage
8
results.”
Mich. Comp. Laws Ann. § 600.5827.
have a common-law discovery rule.
Michigan does not
Trentadue v. Buckler Lawn
Sprinkler, 738 N.W.2d 664, 680 (Mich. 2007).
“The time of the
wrong trigger[s] the limitations period, and that date [is] the
date on which plaintiff was harmed by the defendant’s act.”
Smith v. Stryker Corp., No. 294916, 2011 WL 445646, at *1 (Mich.
Ct. App. Feb. 8, 2011).
Here, Sass was harmed in May 2005, when
her doctor had to remove a portion of her ObTape.
Thus, under
Michigan law her warranty and fraud claims accrued in May 2005.
Michigan has a statute that tolls the limitations period
due
to
fraudulent
§ 600.5855.
above,
concealment.
Mich.
Comp.
Sass contends that it applies here.
Sass’s
argument
focuses
on
her
Laws
Ann.
As discussed
assertion
that
Mentor
concealed the true risks of ObTape and that her physician would
not have implanted it had he known its true risks.
appear
to
implanted
contend
with
Furthermore,
exercise
due
like
that
ObTape
Mentor
did
to
conceal
Kentucky,
Michigan
something
diligence
to
her
her
after
potential
requires
investigate
She does not
a
she
claims.
plaintiff
potential
was
to
claims.
E.g. Younce v. JP Morgan Chase Bank N.A., No. 323242, 2015 WL
7571908, at *4 (Mich. Ct. App. Nov. 24, 2015) (concluding that
§ 600.5855 did not apply to a case where the plaintiffs could
have discovered their claims if they had investigated them).
For
the
same
reasons
discussed
9
above
with
regard
to
Sass’s
fraudulent concealment argument under Kentucky law, the Court
finds that Michigan’s fraudulent concealment statute does not
toll the statute of limitations for Sass.
She did not file her
action until more than seven years after her fraud and warranty
claims accrued, so those claims are time-barred.
CONCLUSION
As discussed above, Mentor’s summary judgment motion (ECF
No. 43 in 4:12-cv-251) 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
10
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