SASS v. MENTOR WORLDWIDE LLC
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
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
Patricia Lynne Sass was implanted with ObTape and asserts that
she suffered injuries caused by ObTape.
Sass brought a product
design and/or manufacturing defects that proximately caused her
Sass also asserts that Mentor did not adequately warn
her physicians about the risks associated with ObTape.
seeks summary judgment on Sass’s claims, contending that they
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
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.
recommended an ObTape implant.
ObTape on January 21, 2005.
Dr. Kutsche implanted Sass with
In May 2005, Sass returned to Dr.
Kutsche complaining of dyspareunia and yellowish brown vaginal
He told Sass that her incision was open, that she had
an infection, and that a portion of her ObTape needed to be
Sass Dep. 70:5-14, ECF No. 43-4 in 4:12-cv-251.
Kutsche removed a three-inch portion of Sass’s ObTape on May 9,
Dr. Kutsche performed another revision in June 2005.
Kutsche referred her to Dr. Andrew Agosta.
In September 2005,
Dr. Agosta diagnosed Sass with a localized abscess over her
Given the location of the abscess, Dr. Agosta
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.
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
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.
446 in 4:08-md-2004.
Sass was a Kentucky resident when she
choice-of-law analysis applies to her claims.
The parties also
agree that Sass’s claims arose in Michigan, where all of her
ObTape-related treatment took place.
See Abel v. Austin, 411
action arose where plaintiffs lived and were injured).
another state, Kentucky’s limitation period applies unless the
other state’s limitation period is shorter.
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
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),
statute, Kentucky’s one-year statute of limitations applies to
Sass’s strict liability and negligence claims.
They also agree
Sass’s breach of warranty and fraud claims.
that all of Sass’s claims are time-barred.
Sass’s Strict Liability and Negligence Claims
Kentucky has a one-year statute of limitations for personal
Ky. Rev. Stat. Ann. § 413.140(1)(A).
injury claim does not “accrue until the plaintiff discovers (or
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
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
Even though the contractors “had not previously heard of
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.
injuries related to ObTape well before then.
By December 2005,
Sass had undergone two ObTape revision surgeries and had been
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.
connection between ObTape and at least some of her injuries.
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.
potential claims because her doctors never told her there was a
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
Kentucky law, a statute of limitations may be tolled if the
defendant engages in “conduct which in point of fact misleads or
instituting his suit while he may do so.”
Emberton v. GMRI,
Inc., 299 S.W.3d 565, 573 (Ky. 2009) (quoting Adams v. Ison, 249
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
witnessed the server’s lack of appropriate hygiene.
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.
The Kentucky Supreme
Court emphasized that the patron could not have discovered the
Here, Sass argues that Mentor had a duty to disclose the
true risks of ObTape to her physician before he implanted her
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
issued a recall or otherwise publicly disclosed defects.”
Corp., 306 S.W.3d at 63.
The Kentucky Supreme Court emphasized
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.
did not point to evidence that she could not have discovered
enough facts to support her claims had she started investigating
reasonable time after she discovered the connection.
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.
Sass’s Warranty and Fraud Claims
actions, regardless of the plaintiff’s theory of the case, is
Michigan law, a claim accrues at “the time the wrong upon which
the claim is based was done regardless of the time when damage
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.
Michigan law her warranty and fraud claims accrued in May 2005.
Michigan has a statute that tolls the limitations period
Sass contends that it applies here.
concealed the true risks of ObTape and that her physician would
not have implanted it had he known its true risks.
She does not
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).
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.
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
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