Rogers v. Mentor Corporation et al

Filing 48

ORDER granting (45) Motion for Summary Judgment in case 4:12-cv-00308-CDL; granting (42) Motion for Summary Judgment in case 4:12-cv-00307-CDL; granting (44) Motion for Summary Judgment in case 4:12-cv-00319-C DL; granting (49) Motion for Summary Judgment in case 4:12-cv-00323-CDL; granting (40) Motion for Summary Judgment in case 4:13-cv-00010-CDL; granting (41) Motion for Summary Judgment in case 4:13-cv-00048-CDL. Ordered by US DISTRICT JUDGE CLAY D LAND on 12/09/2015. (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 Nos.
4:12-cv-307 (Rogers)
4:12-cv-308 (Mosier)
4:12-cv-319 (Kearse)
4:12-cv-323 (Shirey)
4:13-cv-10 (Weikel)
4:13-cv-48 (Shaffer)

*
*
*

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.

Plaintiffs

Deborah Rogers, Verna Mosier, Victoria Kearse, Samantha Shirey,
Michelle

Weikel,

and

Betty

Lou

Shaffer

were

implanted

with

ObTape and assert that they suffered injuries caused by ObTape.
Each

Plaintiff

brought

a

product

liability

action

against

Mentor, contending that ObTape had design and/or manufacturing
defects that proximately caused her injuries.
assert

that

about

the

their

claims

Mentor

risks

did

not

associated

under

adequately
with

negligence

warn

ObTape.

and

strict

Plaintiffs also
their

physicians

Plaintiffs
liability

Mentor contends that their claims are all time-barred.

brought

theories.
For the

reasons set forth below, the Court agrees, and Mentor’s summary
judgment motions are 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
I.

Plaintiff Deborah Rogers (ECF No. 42 in 4:12-cv-307)
Deborah

Rogers

visited

Dr.

Jonathan

Kalish

in

2005

for

treatment of stress urinary incontinence.

Dr. Kalish implanted

Rogers with ObTape on September 26, 2005.

In July 2006, Rogers

went to Dr. Newt Harrison because she had a foreign body hanging
from her vaginal area.

Dr. Harrison reviewed Rogers’s medical

records and discovered that the foreign body must be the ObTape
that had been implanted in 2005.

Dr. Harrison called Dr. Kevin

Bond, a urologist, to remove the exposed ObTape.

As Dr. Bond

excised the eroded portion of Rogers’s ObTape, the entire sling

2

“slid right out.”
cv-307.

Bond Dep. 19:17-20:10, ECF No. 42-8 in 4:12-

Though Dr. Bond did not recall exactly what he told

Rogers, he is sure that he discussed his operative findings with
Rogers

or

a

family

acknowledges
regarding

that

the

her

reason

member.

Id.

doctors
for

the

at

probably
excision

34:12-16.

Rogers

communicated
surgery

and

to

her

that

her

medical records reflect that her ObTape was removed in July
2006.

Rogers Dep. 58:12-60:11, ECF No. 44-3.
Rogers

treatment

is

took

a

Mississippi

place

in

resident

Mississippi.

whose
On

ObTape-related

October

11,

2012,

Rogers served Mentor with a copy of her Complaint captioned in
Hennepin

County

District

Court

of

the

State

of

Minnesota.

Rogers brought claims for strict liability and negligence.
II.

Plaintiff Verna Mosier (ECF No. 45 in 4:12-cv-308)
Verna

stress

Mosier

urinary

visited

Dr.

incontinence,

Helen

and

with ObTape on June 29, 2004.

Dr.

Kinsey
Kinsey

for

treatment

implanted

of

Mosier

In February 2005, Mosier was

diagnosed with a left groin abscess.

Dr. Kinsey told Mosier

that she suspected a connection between the abscess and Mosier’s
ObTape, and she referred Mosier to Dr. Jyot Saini for further
evaluation.

Dr. Saini diagnosed Mosier with a vaginal erosion

of the ObTape and told Mosier that there was a high likelihood
that the ObTape was related to her abscess.
Mosier’s ObTape in March 2005.

3

Dr. Saini removed

Mosier

was

an

Indiana

resident

treatment took place in Indiana.

whose

ObTape-related

On September 26, 2012, Mosier

filed a Complaint in Hennepin County District Court of the State
of Minnesota.
Mosier

is

Mosier died in 2014, and her husband Abraham

pursuing

Mosier’s

claims

for

strict

negligence on behalf of Mosier’s estate.

liability

and

He also asserts a

claim for loss of consortium.
III. Plaintiff Victoria Kearse (ECF No. 44 in 4:12-cv-319)
Dr. Christopher Pieczonka implanted Victoria Kearse with
ObTape on November 5, 2004.
to

Dr.

Pieczonka

In January 2005, Kearse presented

complaining

of

vaginal

discharge.

Dr.

Pieczonka observed that a portion of Kearse’s ObTape was exposed
through

the

incision.
complaining

incision

site,

and

he

attempted

to

close

the

Later that month, Kearse returned to Dr. Pieczonka
of

vaginal

discharge.

Again,

Dr.

Pieczonka

saw

exposed ObTape, and he surgically removed a portion of it.

In

September 2005, Dr. Pieczonka diagnosed an erosion of Kearse’s
ObTape and performed another excision procedure.

At the time,

Kearse knew that Dr. Pieczonka had to remove portions of her
ObTape, and she believed that her body was rejecting the mesh.
Kearse

is

a

New

York

resident

treatment took place in New York.

whose

ObTape-related

On October 19, 2012, Kearse

served Mentor with a copy of her Complaint captioned in Hennepin

4

County District Court of the State of Minnesota.

Kearse brought

claims for strict liability and negligence.
IV.

Plaintiff Samantha Shirey (ECF No. 49 in 4:12-cv-323)
Dr. Brian Chadwick diagnosed Samantha Shirey with stress

urinary incontinence and recommended that she undergo an ObTape
implant surgery.
December

15,

Dr. Chadwick implanted Shirey with ObTape on

2004.

In

2006,

Shirey

began

experiencing

complications, including vaginal discharge and thigh pain, and
Shirey’s husband encouraged her to see a doctor after he felt
something protruding from her vagina during sex.
On June 24, 2006, Shirey went to the hospital and was told
that the object in her vagina was an exposed piece of mesh.
Shirey was ultimately referred to Dr. Connor Smith.
examined

Shirey

exposed ObTape.

and

told

her

that

he

needed

to

Dr. Smith
remove

the

He also told her that the ObTape was causing

her discharge and thigh pain and that he thought removing the
exposed

portion

of

the

Shirey Dep. 73:7-74:3.

mesh

would

alleviate

these

symptoms.

On July 11, 2006, Dr. Smith removed the

exposed portion of the mesh, but Shirey continued to experience
pain in her thigh.

Dr. Smith told Shirey that the pain was

caused by her ObTape, and he recommended removing as much of the
remaining

mesh

as

possible.

Dr.

excision procedure on July 19, 2006.

5

Smith

performed

a

second

Shirey is a Georgia resident whose ObTape-related treatment
took

place

in

Georgia.

On

October

19,

2012,

Shirey

served

Mentor with a copy of her Complaint captioned in Hennepin County
District Court of the State of Minnesota.
for

strict

liability

and

negligence,

Shirey brought claims

and

her

husband

Brian

brought a loss of consortium claim.
V.

Plaintiff Michelle Weikel (ECF No. 40 in 4:13-cv-10)
Dr. Deborah Poplawsky implanted Michelle Weikel with ObTape

on April 2, 2004 to treat Weikel’s stress urinary incontinence.
In April 2005, Weikel returned to Dr. Poplawsky complaining of
vaginal

discharge,

burning,

and

itching.

Weikel

knew

that

something was wrong because she had pain and noticed a foul
odor.

Dr. Poplawsky examined Weikel and found an erosion of

Weikel’s ObTape.
her

ObTape

had

Dr. Poplawsky told Weikel that a portion of
eroded

and

would

need

to

be

removed.

Dr.

Poplawsky removed the exposed piece of ObTape on May 3, 2005.
Although Dr. Poplawsky told Weikel that she did not think that
the

ObTape

caused

Weikel’s

external

itching,

Weikel

believes

that ObTape caused her itching and other symptoms, such as pain
and discharge.

And Weikel knew that she had to have a second

surgical procedure because of the erosion.

Since the revision

surgery in 2005, Weikel has wanted to have the remainder of her
ObTape removed because of the problems she believes it causes.

6

Weikel

is

a

Pennsylvania

resident

treatment took place in Pennsylvania.

whose

ObTape-related

On December 12, 2012,

Weikel served Mentor with a copy of her Complaint captioned in
Hennepin

County

District

Court

of

the

State

of

Minnesota.

Weikel brought claims for strict liability and negligence.
VI.

Plaintiff Betty Lou Shaffer (ECF No. 41 in 4:13-cv-48)
Dr. Subodh Patel implanted Betty Lou Shaffer with ObTape on

November 17, 2003.

In late 2003 or early 2004, Shaffer returned

to Dr. Patel complaining of pain and a sandpaper-like sensation
inside her vagina.

Dr. Patel diagnosed Shaffer with an erosion

of the ObTape and told Shaffer that he would have to remove the
ObTape.

After Dr. Patel performed the revision surgery, the

sandpaper pain feeling went away.
Shaffer

is

a

Pennsylvania

resident

treatment took place in Pennsylvania.

whose

ObTape-related

On January 31, 3013,

Shaffer served Mentor with a copy of her Complaint captioned in
Hennepin

County

District

Court

of

the

State

of

Minnesota.

Shaffer brought claims for strict liability and negligence.
DISCUSSION
Each Plaintiff filed her action in Minnesota state court,
and Mentor removed each Plaintiff’s action to the United States
District Court for the District of Minnesota.
later

transferred

to

this

Court

as

part

litigation proceeding regarding ObTape.

7

of

The cases were
a

multidistrict

The parties agree for

purposes

of

summary

Plaintiffs’

judgment

claims.

that

See

Minnesota

In

re

law

Mentor

applies

Corp.

to

ObTape

Transobturator Sling Prods. Liab. Litig., No. 4:08-md-2004, 2013
WL

286276,

claims

of

at

*7

(concluding

non-Minnesota

that

ObTape

Minnesota

plaintiffs

law

who

applied

brought

to

their

actions in Minnesota).
Mentor

contends

under Minnesota law.

that

Plaintiffs’

claims

are

time-barred

The statute of limitations for a strict

liability claim is four years.

Minn. Stat. § 541.05 subd. 2

(“[A]ny action based on the strict liability of the defendant
and arising from the manufacture, sale, use or consumption of a
product shall be commenced within four years.”).

The statute of

limitations for a negligence claim is six years.

Minn. Stat.

§ 541.05 subd. 1(5) (establishing six-year limitation period for
personal

injury

liability).

claims

not

arising

in

contract

or

strict

Under Minnesota law, “a claim involving personal

injuries allegedly caused by a defective product accrues when
two

elements

are

present:

‘(1)

a

cognizable

physical

manifestation of the disease or injury, and (2) evidence of a
causal

connection

between

the

injury

defendant’s product, act, or omission.’”

or

disease

and

the

Klempka v. G.D. Searle

& Co., 963 F.2d 168, 170 (8th Cir. 1992) (quoting Hildebrandt v.
Allied

Corp.,

839

F.2d

396,

398

Minnesota law).

8

(8th

Cir.

1987))

(applying

“A plaintiff who is aware of both her injury and the likely
cause of her injury is not permitted to circumvent the statute
of limitations by waiting for a more serious injury to develop
from

the

plaintiff

same

cause.”

suffered

Id.

injuries

For
and

example,

was

in

diagnosed

Klempka,
with

the

chronic

pelvic inflammatory disease, which her doctor said was caused by
the plaintiff’s intrauterine device. Id. at 169. Several years
later, the plaintiff was told that she was infertile and that
the intrauterine device caused her infertility.

Id.

Applying

Minnesota law, the Eighth Circuit concluded that the plaintiff’s
cause of action accrued when she first learned that she had an
injury (chronic pelvic inflammatory disease) that was caused by
the intrauterine device.

Id. at 170.

Here, each Plaintiff contends that she did not learn of a
connection

between

ObTape

and

her

injuries

until

she

saw

a

television commercial regarding mesh complications during 2011
or

2012.

But

each

Plaintiff

knew

that

she

suffered

some

injuries caused by ObTape well before then.
Deborah Rogers.

Rogers knew in July 2006 that she had a

foreign body hanging from her vaginal area and that she had to
have it surgically removed.
operative

findings

with

her

Rogers’s doctors discussed their
or

a

family

member.

Rogers

acknowledges that her medical records reflect that her ObTape
was removed in July 2006, and she also acknowledges that her

9

doctors probably told her the reason for the excision surgery at
that time.
known,

Therefore, Rogers knew in July 2006 (or could have

through

the

exercise

of

reasonable

diligence)

of

a

connection between ObTape and at least some of her injuries.
She did not file her complaint until more than six years later,
in October 2012.
Verna Mosier.
and

her

doctor

Mosier suffered an abscess in February 2005,

told

her

at

the

time

that

she

suspected

connection between the abscess and Mosier’s ObTape.
thereafter,

another

doctor

diagnosed

Mosier

with

a

Shortly
a

vaginal

erosion of the ObTape and told Mosier that there was a high
likelihood

that

the

ObTape

was

related

to

her

abscess.

Therefore, Mosier knew by March 2005 that there was a likely
connection between ObTape and some of her injuries.
file

her

complaint

until

more

than

seven

She did not

years

later,

in

September 2012.
Victoria

Kearse.

discharge

shortly

diagnosed

an

Kearse

after

erosion

her

of

began

implant

ObTape.

to

experience

surgery,
Several

and

months

her

vaginal
doctor

later,

in

September 2005, Kearse’s doctor diagnosed another erosion and
performed another excision procedure.

At the time, Kearse knew

that the doctor had to remove portions of her ObTape, and she
believed
Kearse

that

knew

her
by

body

was

September

rejecting

2005

10

that

the

mesh.

there

was

Therefore,
a

connection

between ObTape and some of her injuries.

She did not file her

complaint until more than seven years later, in October 2012.
Samantha

Shirey.

In

2006,

Shirey

began

experiencing

adverse symptoms, including vaginal discharge, thigh pain, and
the feeling that she had a foreign object in her vagina.

In

June 2006, Shirey was told that the object in her vagina was an
exposed piece of mesh.

Shirey’s doctor told her that he needed

to remove the ObTape, that the ObTape was causing her discharge
and thigh pain, and that he thought removing the exposed portion
of the mesh would alleviate these symptoms.

After the doctor

removed a portion of the mesh, Shirey continued to experience
pain.

Shirey’s doctor told her that the pain was caused by her

ObTape.

He recommended removing as much of the remaining mesh

as possible and performed a second excision surgery in July
2006.

Therefore, Shirey knew by July 2006 that there was a

connection between ObTape and some of her injuries.

She did not

file her complaint until more than six years later, in October
2012.
Michelle Weikel.
complaining
itching.
had

of

vaginal

In April 2005, Weikel went to her doctor
discharge,

a

foul

odor,

burning,

and

Weikel’s doctor told her that a portion of her ObTape

eroded

and

would

need

to

be

removed.

Weikel’s

removed the exposed piece of ObTape on May 3, 2005.

doctor

Although

the doctor told Weikel that she did not think that the ObTape

11

caused Weikel’s external itching, Weikel believes that ObTape
caused

her

discharge.

itching

and

other

symptoms,

such

as

pain

and

And Weikel knew that she had to have a surgical

procedure to remove the exposed ObTape.

Since the revision

surgery in 2005, Weikel has wanted to have the remainder of her
ObTape removed because of the problems she believes it causes.
Therefore, by May 2005, Weikel strongly suspected a connection
between ObTape and some of her injuries.

She did not file her

complaint until more than seven years later, in December 2012.
Betty Lou Shaffer.

In late 2003 or early 2004, Shaffer

went to her doctor complaining of pain and a sandpaper-like
sensation inside her vagina.

Shaffer’s doctor diagnosed her

with an erosion of her ObTape and told Shaffer that he would
have to remove the ObTape.
revision

surgery,

the

After Shaffer’s doctor performed the

sandpaper

pain

feeling

went

away.

Therefore, by January 2004, Shaffer knew of a connection between
ObTape and some of her injuries.

She did not file her complaint

until approximately nine years later, in January 2013.
Plaintiffs contend that it is not enough that they made a
connection between ObTape and some of their injuries.

Rather,

they appear to argue that they must have been on notice that a
defect

in ObTape caused their injuries.

Plaintiffs did not

point to any Minnesota authority holding that a plaintiff must
be on actual notice that her specific injuries were caused by a

12

product defect.

Rather, the precedent establishes that a claim

accrues when the plaintiff becomes aware of an injury and a
causal

connection

product.

between

the

injury

and

the

defendant’s

Klempka, 963 F.2d at 170.

Plaintiffs

nonetheless

contend

that

two

Eighth

Circuit

cases and one Minnesota District Court case support denial of
summary judgment.

The Court disagrees.

First, they point to

Hildebrandt v. Allied Corp., 839 F.2d 396 (8th Cir. 1987), where
the plaintiffs alleged that they suffered lung damage due to
their exposure to a toxic chemical at their workplace.

But

there, unlike here, the plaintiffs’ doctors initially told the
plaintiffs that there was no correlation between their symptoms
and

the

chemical.

Id.

at

399.

The

Eighth

Circuit

thus

concluded that the plaintiffs’ claims did not accrue until the
cause

of

the

plaintiffs’

injuries

was

rationally

identified.

Second, Plaintiffs point to Tuttle v. Lorillard Tobacco Co., 377
F.3d 917 (8th Cir. 2004). In Tuttle, the district court found
that the decedent’s smokeless tobacco product liability action
accrued when the decedent discovered a lump in his cheek.

The

Eighth Circuit reversed because the decedent’s doctor initially
told the decedent that the lump was caused by an oral infection
and was treatable with antibiotics—not that it was oral cancer
caused by the tobacco. Id. at 922.

Third, Plaintiffs point to

Huggins v. Stryker Corp., 932 F. Supp. 2d 972 (D. Minn. 2013).

13

In Huggins, the plaintiff asserted that the defendant’s pain
pump caused a condition that resulted in degeneration of his
cartilage.

The

plaintiff’s

doctor

discovered

the

loss

of

cartilage in 2002, but he did not connect the condition to the
pain

pump

or

connection.

tell

the

plaintiff

that

there

was

such

a

The district court noted that the “first article

recognizing a potential causal link between pain pumps” and the
plaintiff’s condition was not published until 2007.
Hildebrandt, Tuttle,
from Plaintiffs’ cases.

and

Huggins

Id.

are all distinguishable

In Hildebrandt, Tuttle, and Huggins,

the plaintiffs suffered injuries that could have been caused by
the defendant’s product OR could have been caused by something
else, and the courts concluded that the cause of action did not
accrue

until

the

plaintiffs

had

some

objective

information

suggesting a causal link between the product and the injury.
contrast,

here,

each

Plaintiff

suffered

injuries

that

In
were

connected to an erosion of the ObTape, and each Plaintiff knew
of, strongly suspected, or had enough information to know of a
connection between ObTape and at least some of her injuries by
the time of her excision procedure.
Plaintiffs argue that even if Minnesota’s discovery rule
does not save their strict liability claims, the statute of
limitations

should

be

tolled

by

fraudulent

concealment.

“Fraudulent concealment, if it occurs, will toll the running of

14

the

statute

of

limitations

until

discovery

or

reasonable

opportunity for discovery of the cause of action by the exercise
of due diligence.”

Holstad v. Sw. Porcelain, Inc., 421 N.W.2d

371, 374 (Minn. Ct. App. 1988); accord Hydra-Mac, Inc. v. Onan
Corp., 450 N.W.2d 913, 918 (Minn. 1990). “The party claiming
fraudulent

concealment

has

the

burden

of

showing

that

the

concealment could not have been discovered sooner by reasonable
diligence

on

negligence.”
As

his

part

and

was

not

the

result

of

his

own

Wild v. Rarig, 234 N.W.2d 775, 795 (Minn. 1975).

discussed

above,

each

Plaintiff

knew

of,

strongly

suspected, or had enough information to know of a connection
between ObTape and at least some of her injuries by the time of
her excision procedure.

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. But Plaintiffs pointed to no evidence that they
took

any

action

to

investigate

their

potential

claims

even

though they knew (or had enough information to know) there was a
connection between their injuries and the ObTape.

Under these

circumstances, the Court concludes that fraudulent concealment
does not toll the statute of limitations.
None of the Plaintiffs filed their complaints within six
years after their claims accrued.

15

Their strict liability and

negligence

claims

are

consortium

claims

of

because

their

wives’

therefore
Abraham
claims

time-barred.

Mosier
fail.

loss

of

consortium

is

loss

of

and

Brian

Shirey

fail

Kohler

v.

Fletcher,

442

N.W.2d 169, 173 (Minn. Ct. App. 1989).
for

The

derivative

(“As a husband’s claim
only,

if

his

wife’s

underlying tort claim fails, his claim for loss of consortium
also fails.”).
CONCLUSION
For the reasons set forth above, Mentor’s summary judgment
motions (ECF No. 42 in 4:12-cv-307; ECF No. 45 in 4:12-cv-308;
ECF No. 44 in 4:12-cv-319; ECF No. 49 in 4:12-cv-323; ECF No. 40
in 4:13-cv-10; ECF No. 41 in 4:13-cv-48) are granted.

IT IS SO ORDERED, this 9th day of December, 2015.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

16